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Code · REGISTER · 2007-10-29 · Environmental Protection Agency (EPA) · Rules and Regulations

Rules and Regulations. Final rule

35,066 words·~159 min read·/register/2007/10/29/07-5367

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [Docket No. EPA-R05-RCRA-2007-0397; FRL-8488-6] Ohio: Final Authorization of State Hazardous Waste Management Program Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is granting Ohio Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The agency published a proposed rule on June 6, 2007 at 72 FR 31237 and provided for public comment.
The public comment period ended on July 6, 2007. We received no comments. No further opportunity for comment will be provided. EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is proposing to authorize the State's changes through this proposed final action. DATES: The final authorization will be effective on October 29, 2007. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R05-RCRA-2007-0397.
All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some of the information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy. You may view and copy Ohio's application from 9 a.m. to 4 p.m. at the following addresses:
U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois, contact: Gary Westefer
(312)886-7450; or Ohio Environmental Protection Agency, Lazarus Government Center, 50 West Town Street, Suite 700, Columbus, Ohio, contact: Jeff Mayhugh
(614)644-2950. FOR FURTHER INFORMATION CONTACT: Gary Westefer, Ohio Regulatory Specialist, U.S. EPA Region 5, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-7450, e-mail *westefer.gary@epa.gov.* SUPPLEMENTARY INFORMATION: A. Why Are Revisions to State Programs Necessary? States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273 and 279. B. What Decisions Have We Made in This Rule? We conclude that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are granting Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application. Ohio has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Ohio, including issuing permits, until the State is granted authorization to do so. C. What Is the Effect of Today's Authorization Decision? The effect of this decision is that a facility in Ohio subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Ohio has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: 1. Do inspections, and require monitoring, tests, analyses or reports 2. Enforce RCRA requirements and suspend or revoke permits 3. Take enforcement actions regardless of whether the State has taken its own actions This action does not impose additional requirements on the regulated community because the regulations for which Ohio is being authorized by today's action are already effective, and are not changed by today's action. D. Proposed Rule On June 6, 2007 (72 FR 31237), EPA published a proposed rule. In that rule we proposed granting authorization of changes to Ohio's hazardous waste program and opened our decision to public comment. The agency received no comments on this proposal. EPA found Ohio's RCRA program to be satisfactory. E. What Has Ohio Previously Been Authorized for? Ohio initially received final authorization on June 28, 1989, effective June 30, 1989 (54 FR 27170) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on April 8, 1991, effective June 7, 1991 (56 FR 14203) as corrected June 19, 1991, effective August 19, 1991 (56 FR 28088); July 27, 1995, effective September 25, 1995 (60 FR 38502); October 23, 1996, effective December 23, 1996 (61 FR 54950); January 24, 2003, effective January 24, 2003 (68 FR 3429); and January 20, 2006, effective January 20, 2006 (71 FR 3220). F. What Changes Are We Authorizing With Today's Action? On January 22, 2007, Ohio submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, that Ohio's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we are granting Ohio final authorization for the following program changes: Table 1.—Ohio's Analogs to the Federal Requirements Description of federal requirement (include checklist #, if relevant) Federal Register date and page (and/or RCRA statutory authority) Analogous state authority Toxicity Characteristic; Hydrocarbon Recovery Operations Checklist 80 as amended October 5, 1990, 55 FR 40834 OAC 3745-51-04; Effective April 15, 1993. Checklist 80.1 as amended February 1, 1991, 56 FR 3978 Checklist 80.2 April 2, 1991, 56 FR 13406 Burning of Hazardous Waste in Boilers and Industrial Furnaces Checklist 85 February 21, 1991, 56 FR 7134 OAC 3745-50-10; 3745-50-11; 3745-50-40; 3745-50-44; 3745-50-51; 3745-50-66; 3745-51-02; 3745-51-04; 3745-51-06; 3745-55-12; 3745-57-40; 3745-66-12; 3745-66-13; 3745-68-40; 3745-266-100; 3745-266-101; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-105; 3745-266-106; 3745-266-107; 3745-266-108; 3745-266-109; 3745-266-110; 3745-266-111; 3745-266-112; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces; Corrections and Technical Amendments I Checklist 94 July 17, 1991, 56 FR 32688 OAC 3745-50-40; 3745-50-44; 3745-50-51; 3745-50-66; 3745-51-03; 3745-51-06; 3745-68-70; 3745-266-100; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-106; 3745-266-107; 3745-266-108; 3745-266-109; 3745-266-110; 3745-266-112; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces Technical Amendments II Checklist 96 August 27, 1991, 56 FR 42504 OAC 3745-51-02; 3745-66-12; 3745-66-13; 3745-266-100; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-108; 3745-266-109; 3745-266-110; 3745-266-111; 3745-266-112; Effective December 7, 2004. Coke Ovens Administrative Stay Checklist 98 September 5, 1991, 56 FR 43754 OAC 3745-266-100; Effective December 7, 2004. Liners and Leak Detection Systems for Hazardous Waste Land Disposal Units Checklist 100 January 29, 1992, 57 FR 3462 OAC 3745-50-10; 3745-50-44; 3745-54-15; 3745-54-19; 3745-54-73; 3745-56-21; 3745-56-22; 3745-56-23; 3745-56-26; 3745-56-28; 3745-56-51; 3745-56-52; 3745-56-53; 3745-56-54; 3745-57-02; 3745-57-03; 3745-57-04; 3745-57-06; 3745-57-10; 3745-65-15; 3745-65-19; 3745-65-73; 3745-67-21; 3745-67-22; 3745-67-23; 3745-67-26; 3745-67-28; 3745-67-54; 3745-67-55; 3745-67-59; 3745-67-60; 3745-68-02 3745-68-03; 3745-68-04; 3745-68-05; 3745-68-10; Effective December 7, 2004. Coke by-product Exclusion Checklist 105 June 22, 1992, 57 FR 27880 OAC 3745-51-04; 3745-266-100; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces; Technical Amendment III Checklist 111 August 25, 1992, 57 FR 38558 OAC 3745-50-10; 3745-50-11; 3745-51-02; 3745-54-01; 3745-65-01; 3745-266-100; 3745-266-101; 3745-266-103; 3745-266-104; 3745-266-106; 3745-266-107; 3745-266-108; 3745-266-112; Effective December 7, 2004. Burning of Hazardous Waste in Boilers and Industrial Furnaces; Amendment IV Checklist 114 September 30, 1992, 57 FR 44999 OAC 3745-266-103; Effective December 7, 2004. Corrective Action Management Units and Temporary Units; Corrective Action Provisions Under Subtitle C Checklist 121 February 16, 1993, 58 FR 8658 OAC 3745-50-10; 3745-50-51; 3745-54-03; 3745-55-011; 3745-57-72; 3745-57-73; 3745-65-01; 3745-270-02; Effective December 7, 2000. Requirements for Preparation, Adoption and Submittal of Implementation Plans Checklist 125 July 20, 1993, 58 FR 38816 OAC 3745-50-11; 3745-266-104; 3745-266-106; Effective December 7, 2004. Hazardous Waste Management System; Testing and Monitoring Activities Checklist 126 as amended August 31, 1993, 58 FR 46040 OAC 3745-50-11; 3745-50-19; 3745-50-44; 3745-50-62; 3745-50-66; 3745-51-20; 3745-51-22; 3745-51-24; 3745-55-90; 3745-57-14; 3745-66-90; 3745-68-14; 3745-270-07; Effective December 7, 2004. Checklist 126.1 September 19, 1994, 59 FR 47980 3745-270-40; Effective February 8, 2005. Burning of Hazardous Waste in Boilers and Industrial Furnaces, Revised Bevill Exemption Levels Checklist 127 November 9, 1993, 58 FR 59598 OAC 3745-266-112; Effective December 7, 2004. Solid Waste, Hazardous Waste, Oil Discharge and Superfund Programs; Removal of Legally Obsolete Rules Checklist 144 June 29, 1995 60 FR 33912 OAC 3745-50-10; 3745-50-40; 3745-51-31; 375-266-103; 3745-266-104; Effective December 7, 2004. RCRA Expanded Public Participation Checklist 148 December 11, 1995 60 FR 63417 OAC 3745-50-10; 3745-50-39; 3745-50-44; 3745-50-57; 3745-50-58; 3745-50-62; 3745-50-66; Effective December 7, 2004. Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous Properties Checklist 156 February 12, 1997 62 FR 6622 OAC 3745-50-10; 3745-50-45; 3745-50-51; 3745-51-02; 3745-52-10; 3745-52-20; 3745-53-10; 3745-54-01; 3745-54-70; 3745-65-01; 3745-65-70; 3745-205-200; 3745-205-201; 3745-205-202; 3745-256-200; 3745-256-201; 3745-256-202; 3745-266-200; 3745-266-201; 3745-266-202; 3745-266-203; 3745-266-204; 3745-266-205; 3745-266-206; Effective December 7, 2004. Hazardous Waste Management System; Testing and Monitoring Activities Checklist 158 June 13, 1997 62 FR 32452 OAC 3745-50-51; 3745-266-103; 3745-266-104; 3745-266-106; 3745-266-107; Effective December 7, 2004. Kraft Mill Steam Stripper Condensate Exclusion Checklist 164 April 15, 1998 63 FR 18504 OAC 3745-51-03; 3745-51-04; 3745-51-06; 3745-51-30; 3745-51-31; 3745-51-32; 3745-266-100; Effective December 7, 2004. 3745-270-40; Effective February 8, 2005. Standards Applicable to Owners/Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process Checklist 174 October 22, 1998 63 FR 56709 OAC 3745-50-44; 3745-50-45; 3745-54-90; 3745-55-10; 3745-55-12; 3745-55-18; 3745-55-40; 3745-65-90; 3745-66-10; 3745-66-12; 3745-66-18; 3745-66-21; 3745-66-40; Effective December 7, 2004. Hazardous Remediation Waste Management Requirements Checklist 175 November 30, 1998 63 FR 65873 OAC 3745-50-10; 3745-50-40; 3745-50-42; 3745-50-51; Effective December 7, 2004. Universal Waste Rule Technical Amendment Checklist 176 December 24, 1998 63 FR 71225 OAC 3745-266-80; 3745-273-09; Effective December 7, 2004. Guidelines Establishing Test Procedures for the Analysis of Oil and Grease and Non-Polar Material Under the CWA and RCRA Checklist 180 May 14, 1999 64 FR 26315 OAC 3745-50-11; Effective December 7, 2004. Universal Waste: Lamp Rule Checklist 181 July 6, 1999 64 FR 36465 OAC 3745-50-10; 3745-50-45; 3745-51-09; 3745-54-01; 3745-54-100; 3745-270-01; 3745-273-01; 3745-273-02; 3745-273-03; 3745-273-04; 3745-273-05; 3745-273-06; 3745-273-08; 3745-273-09; 3745-273-10; 3745-273-13; 3745-273-14; 3745-273-30; 3745-273-32; 3745-273-33; 3745-273-34; 3745-273-50; 3745-273-60; 3745-273-81; Effective December 7, 2004. NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors Checklist 182 as amended September 30, 1999 64 FR 52827 OAC 3745-50-10; 3745-50-44; 3745-50-51; 3745-50-62; 3745-50-66; 3745-51-38; 3745-57-40; 3745-57-91; 3745-68-40; 3745-266-100; 3745-266-101; 3745-266-105; 3745-266-112; Effective July 27, 2001 and December 7, 2004. Checklist 182.1 November 19, 1999 64 FR 63209 Wastewater Treatment Sludges from the Metal Finishing Industry; 180 Day Accumulation Time Checklist 184 March 8, 2000 65 FR 12377 OAC 3745-52-34; Effective December 7, 2004. NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors; Technical Corrections Checklist 188 as amended July 10, 2000 65 FR 42292 OAC 3745-50-51; 3745-51-38; 3745-57-40; Effective July 27, 2001. Checklist 188.2 July 3, 2001 66 FR 35087 Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Chlorinated Aliphatics Production Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities Checklist 189 November 8, 2000 65 FR 67067 OAC 3745-51-11; 3745-51-30; 3745-51-32; 3745-270-33; 3745-270-48; Effective December 7, 2004. 3745-270-40; Effective February 8, 2005. Storage, Treatment, Transportation, and Disposal of Mixed Waste Checklist 191 May 16, 2001 66 FR 27217 OAC 3745-266-210; 3745-266-220; 3745-266-235; 3745-266-240; 3745-266-250; 3745-266-255; 3745-266-260; 3745-266-305; 3745-266-310; 3745-266-315; 3745-266-345; 3745-266-350; 3745-266-355; Effective December 7, 2004. Revisions to the Mixture and Derived-From Rule Checklist 192A May 16, 2001 66 FR 27266 OAC 3745-51-03; Effective December 7, 2004. Land Disposal Restrictions Correction Checklist 192B May 16, 2001 66 FR 27266 OAC 3745-270-42; Effective December 7, 2004. Change of EPA Mailing Address Checklist 193 June 28, 2001 66 FR 34734 OAC 3745-50-11; Effective December 7, 2004. Correction to the Hazardous Waste Identification Rule (HWIR): Revisions to the Mixture and Derived-From Rules Checklist 194 as amended October 3, 2001 66 FR 50332 OAC 3745-51-03; Effective December 7, 2004. Checklist 194.1 December 3, 2001 66 FR 60153 Identification and Listing of Hazardous Waste: Inorganic Chemical Manufacturing Wastes Checklist 195 as amended November 20, 2001 66 FR 58257 OAC 3745-51-04; 3745-51-30; 3745-51-32; 3745-270-36; Effective December 7, 2004; 3745-270-40; February 8, 2005. Checklist 195.1 April 9, 2002 67 FR 17119 CAMU Amendments Checklist 196 January 22, 2002 67 FR 2962 OAC 3745-50-10; 3745-57-70; 3745-57-71; 3745-57-72; 3745-57-74; 3745-57-75; Effective December 7, 2004. TABLE 2.—Equivalent State Initiated Changes Ohio Amendment Description of change Sections affected and effective date Recycled Used Oil Management Standards Checklist 112 57 FR 41566 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Used Oil Rule OAC 3745-266-100; Effective December 7, 2004. Recovered Oil Exclusion; Petroleum Refining Industry Checklist 135 59 FR 38536 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Used Oil Rule OAC 3745-51-03; 3745-51-06; 3745-266-100; Effective December 7, 2004. Land Disposal Restrictions—Phase II—Universal Treatment Standards and Treatment Standards for Organic Toxicity Characteristics Wastes and Newly Listed Waste Checklist 137 59 FR 47982 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Land Disposal Restrictions —Universal Treatment Standards Rule OAC 3745-266-100; Effective December 7, 2004. Petroleum Refining Process Wastes Checklist 169 63 FR 42110 as amended 63 FR 54356 Adds Federal Equivalent of 40 CFR 266.100 to Ohio's authorized Petroleum Refining Process Wastes Rule OAC 3745-266-100; Effective December 7, 2004. SB11 State Register, electronic rule filing, changes to JCARR jurisdiction and public notice requirements None. Effective September 15, 1999. SB265 Changes per SB265 (PUCO case fix); bill effective 10/17/2002 OAC 3745-50-10; 3745-50-11; 3745-50-19; 3745-50-38; 3745-50-39; 3745-50-40; 3745-50-41; 3745-50-43; 3745-50-44; 3745-50-46; 3745-50-51; 3745-50-53; 3745-50-62; 3745-50-66; 3745-51-03; 3745-51-04; 3745-51-05; 3745-51-06; 3745-51-08; 3745-51-11; 3745-51-20; 3745-51-21; 3745-51-22; 3745-51-23; 3745-51-24; 3745-51-30; 3745-51-32; 3745-51-35; 3745-51-38; 3745-52-10; 3745-52-11; 3745-52-12; 3745-52-20; 3745-52-34; 3745-52-53; 3745-52-54; 3745-52-56; 3745-53-20; 3745-54-30; 3745-54-01; 3745-54-13; 3745-54-18; 3745-54-52; 3745-54-73; 3745-54-98; 3745-55-12; 3745-55-13; 3745-55-42; 3745-55-43; 3745-55-45; 3745-55-51; 3745-55-75; 3745-55-90; 3745-55-93; 3745-55-98; 3745-56-21; 3745-56-51; 3745-57-03; 3745-57-14; 3745-57-40; 3745-57-71; 3745-57-72; 3745-57-73; 3745-54-74; 3745-57-75; 3745-57-91; 3745-65-01; 3745-65-13; 3745-65-52; 3745-65-73; 3745-66-13; 3745-66-42; 3745-66-43; 3745-66-44; 3745-66-45; 3745-66-47; 3745-66-48; 3745-66-90; 3745-66-93; 3745-66-96; 3745-66-98; 3745-66-101; 3745-68-05; 3745-68-14; 3745-68-40; 3745-69-30; 3745-205-101; 3745-266-20; 3745-266-23; 3745-266-100; 3745-266-102; 3745-266-103; 3745-266-104; 3745-266-105; 3745-266-106; 3745-266-107; 3745-266-109; 3745-266-111; 3745-266-112; 3745-266-201; 3745-266-203; 3745-266-205; 3745-266-210; 3745-266-240; 3745-266-250; 3745-266-315; 3745-266-345; 3745-266-350; 3745-270-01; 3745-270-02; 3745-270-03; 3745-270-04; 3745-270-07; 3745-270-31; 3745-270-42; 3745-270-45; 3745-270-48; 3745-270-50; 3745-273-03; 3745-273-09; 3745-273-13; 3745-273-14; 3745-273-33; 3745-273-34; 3745-273-81; 3745-279-10; 3745-279-11; 3745-279-22; 3745-279-42; 3745-279-43; 3745-279-45; 3745-279-51; 3745-279-54; 3745-279-55; 3745-279-62; 3745-279-64; 3745-279-73; Effective December 7, 2004; 3745-270-40; Effective February 8, 2005. HB432 Section 4 HB432, Hazardous Waste permit length changed to ten years, bill effective April 15, 2005 OAC 3745-50-54; Effective 10/14/2006. CL-FLAM References to “Flammable and Combustable Liquids Code” OAC 3745-50-11; 3745-55-98; 3745-66-98; 3745-66-101; 3745-266-111; Effective December 7, 2004. CL-FORM Manifest form number corrections, and other form number corrections OAC 3745-52-12; 3745-52-41; 3745-53-11; 3745-54-01; 3745-279-42; 3745-279-51; 3745-279-62; 3745-279-73; Effective December 7, 2004. CL-HWFB Removal of “HWFB” concept, and addition of authorities to DHWM rules, per HB95 (budget bill, HB95, effective 9/26/2003) OAC 3745-50-10; 3745-50-11; 3745-50-21; 3745-50-30; 3745-50-38; 3745-50-40; 3745-50-41; 3745-50-51; 3745-66-43; Effective December 7, 2004. CL-3010 References to “RCRA 3010” and its prior locations (includes Region 5's comments on the YR5
(J5)set on this subject) OAC 3745-50-40; 3745-51-01; 3745-51-04; 3745-51-06; 3745-51-07; 3745-51-08; 3745-51-20; 3745-57-83; 3745-266-21; 3745-266-22; 3745-266-23; 3745-266-70; 3745-266-80; 3745-273-60; 3745-279-42; 3745-279-51; 3745-279-62; 3745-279-73; Effective December 7, 2004. CL-R5COM Region 5's comments on the YR5
(J5)rules (not including the “RCRA 3010” comments) OAC 3745-50-10; Effective 12/07/04. CL-MEGA Cross-reference of subparts errors, inconsistencies, typos, etc. grouped with Set G (MegaSet) OAC 3745-50-01; 3745-50-10; 3745-50-40; 3745-50-41; 3745-50-42; 3745-50-43; 3745-50-44; 3745-50-45; 3745-50-46; 3745-50-48; 3745-50-51; 3745-50-53; 3745-50-57; 3745-50-58; 3745-50-62; 3745-51-01; 3745-51-02; 3745-51-03; 3745-51-04; 3745-51-05; 3745-51-06; 3745-51-07; 3745-51-08; 3745-51-09; 3745-51-11; 3745-51-20; 3745-51-21; 3745-51-22; 3745-51-23; 3745-51-24; 3745-51-30; 3745-51-31; 3745-51-33; 3745-51-35; 3745-51-38; 3745-52-10; 3745-52-11; 3745-52-12; 3745-52-34; 3745-52-41; 3745-52-50; 3745-52-51; 3745-52-52; 3745-52-53; 3745-52-54; 3745-52-55; 3745-52-56; 3745-52-60; 3745-52-70; 3745-53-10; 3745-53-11; 3745-53-12; 3745-53-20; 3745-53-30; 3745-54-01; 3745-54-03; 3745-54-10; 3745-54-11; 3745-54-12; 3745-54-14; 3745-54-15; 3745-54-16; 3745-54-17; 3745-54-18; 3745-54-30; 3745-54-50; 3745-54-52; 3745-54-70; 3745-54-71; 3745-54-73; 3745-54-74; 3745-54-76; 3745-54-90; 3745-54-94; 3745-54-98; 3745-55-10; 3745-55-11; 3745-55-12; 3745-55-13; 3745-55-16; 3745-55-17; 3745-55-18; 3745-55-19; 3745-55-40; 3745-55-43; 3745-55-45; 3745-55-51; 3745-55-71; 3745-55-75; 3745-55-78; 3745-55-90; 3745-55-93; 3745-55-97; 3745-55-98; 3745-56-20; 3745-56-21; 3745-56-26; 3745-56-28; 3745-56-31; 3745-56-50; 3745-56-51; 3745-56-54; 3745-56-59; 3745-56-78; 3745-56-83; 3745-57-02; 3745-57-03; 3745-57-05; 3745-57-10; 3745-57-14; 3745-57-17; 3745-57-40; 3745-57-41; 3745-57-42; 3745-57-44; 3745-57-73; 3745-57-83; 3745-57-91; 3745-65-01; 3745-65-10; 3745-65-11; 3745-65-12; 3745-65-13; 3745-65-14; 3745-65-15; 3745-65-16; 3745-65-17; 3745-65-30; 3745-65-37; 3745-65-50; 3745-65-52; 3745-65-70; 3745-65-71; 3745-65-73; 3745-65-74; 3745-65-76; 3745-65-90; 3745-65-92; 3745-66-10; 3745-66-11; 3745-66-13; 3745-66-14; 3745-66-16; 3745-66-17; 3745-66-18; 3745-66-19; 3745-66-40; 3745-66-43; 3745-66-44; 3745-66-45; 3745-66-47; 3745-66-48; 3745-66-70; 3745-66-71; 3745-66-90; 3745-66-93; 3745-66-96; 3745-66-97; 3745-66-98; 3745-67-20; 3745-67-21; 3745-67-22; 3745-67-23; 3745-67-26; 3745-67-28; 3745-67-50; 3745-67-54; 3745-67-70; 3745-67-79; 3745-67-80; 3745-68-01; 3745-68-02; 3745-68-14; 3745-68-40; 3745-68-81; 3745-69-01, 3745-69-30, 3745-266-80; 3745-270-01; 3745-270-02; 3745-270-03; 3745-270-04; 3745-270-07; 3745-270-09; 3745-270-31; 3745-270-42; 3745-270-45; 3745-270-48; 3745-270-50; 3745-273-01; 3745-273-02; 3745-273-03; 3745-273-04; 3745-273-05; 3745-273-10; 3745-273-13; 3745-273-14; 3745-273-17; 3745-273-20; 3745-273-30; 3745-273-32; 3745-273-33; 3745-273-34; 3745-273-37; 3745-273-40; 3745-273-50; 3745-273-54; 3745-273-56; 3745-273-60; 3745-273-70; 3745-273-81; 3745-279-10; 3745-279-11; 3745-279-12; 3745-279-22; 3745-279-24; 3745-279-42; 3745-279-43; 3745-279-45; 3745-279-46; 3745-279-51; 3745-279-54; 3745-279-55; 3745-279-56; 3745-279-57; 3745-279-58; 3745-279-61; 3745-279-62; 3745-279-64; 3745-279-65; 3745-279-71; 3745-279-73; 3745-279-74; 3745-279-81; Effective December 7, 2004; 3745-270-40; Effective February 8, 2005. CL-DIGIT 3-digit rule number reference corrections Rescinded rules: OAC 3745-49-031; 3745-50-221; 3745-50-222; 3745-50-311; 3745-50-312; 3745-50-313; 3745-50-314; 3745-50-315; 3745-50-316; 3745-55-01; 3745-55-011; 3745-56-33; 3745-56-60; 3745-57-72; 3745-58-30; 3745-58-31; 3745-58-32; 3745-58-33; 3745-58-60; 3745-58-70; 3745-66-991; 3745-66-992; 3745-68-011; 3745-218-01; 3745-218-011; 3745-218-02; 3745-248-01; 3745-248-011; 3745-248-02 Rescissions; Effective December 7, 2004. New and amended rules: 3745-50-10; 3745-50-19; 3745-50-20; 3745-50-23; 3745-50-24; 3745-50-25; 3745-50-26; 3745-50-27; 3745-50-28; 3745-50-29; 3745-50-30; 3745-50-40; 3745-50-44; 3745-50-45; 3745-50-46; 3745-50-48; 3745-50-51; 3745-50-57; 3745-51-01; 3745-51-02; 3745-51-03; 3745-51-04; 3745-51-05; 3745-51-06; 3745-51-07; 3745-51-08; 3745-51-09; 3745-51-20; 3745-51-32; 3745-51-38; 3745-52-10; 3745-52-11; 3745-52-34; 3745-52-41; 3745-52-70; 3745-53-12; 3745-54-01; 3745-54-03; 3745-54-12; 3745-54-13; 3745-54-14; 3745-54-16; 3745-54-17; 3745-54-18; 3745-54-52; 3745-54-73; 3745-54-74; 3745-54-76; 3745-54-90; 3745-54-91; 3745-54-98; 3745-54-99; 3745-54-100; 3745-54-101; 3745-55-10; 3745-55-11; 3745-55-12; 3745-55-13; 3745-55-17; 3745-55-18; 3745-55-40; 3745-55-42; 3745-55-43; 3745-55-45; 3745-55-51; 3745-55-71; 3745-55-75; 3745-55-93; 3745-56-31; 3745-56-50; 3745-56-59; 3745-56-80; 3745-57-03; 3745-57-10; 3745-57-17; 3745-57-71; 3745-57-73; 3745-57-83; 3745-57-92; 3745-65-01; 3745-65-12; 3745-65-13; 3745-65-14; 3745-65-16; 3745-65-17; 3745-65-52; 3745-65-56; 3745-65-73; 3745-65-74; 3745-66-10; 3745-66-11; 3745-66-12; 3745-66-13; 3745-66-19; 3745-66-40; 3745-66-42; 3745-66-43; 3745-66-45; 3745-66-71; 3745-66-90; 3745-66-93; 3745-66-100; 3745-66-101; 3745-68-05; 3745-68-81; 3745-69-01; 3745-205-100; 3745-205-101; 3745-205-102; 3745-256-100; 3745-256-101; 3745-256-102; 3745-266-20; 3745-266-21; 3745-266-22; 3745-266-23; 3745-266-70; 3745-266-80; 3745-270-04; 3745-270-07; 3745-270-31; 3745-270-50; 3745-273-01; 3745-273-02; 3745-273-03; 3745-273-13; 3745-273-17; 3745-273-33; 3745-273-37; 3745-273-54; 3745-273-60; 3745-279-10; 3745-279-12; 3745-279-22; 3745-279-45; 3745-279-54; 3745-279-64; 3745-279-81; Effective December 7, 2004. G. Where Are the Revised State Rules Different From the Federal Rules? Ohio has excluded the non-delegable Federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3. EPA will continue to implement those requirements. In this action, Ohio has chosen to remain more stringent in two rules. The first is the Hazardous Remediation Waste Management Requirements, (Checklist 175 above) by choosing not to adopt 40 CFR Sections 270.79 through 270.230 which allow for Remedial Action Plans (RAP). The RAP is considered to be less stringent. The second is the Liners and Leak Detection Systems for Hazardous Waste Disposal Units (Checklist 100 above). In this rule, Ohio is not adopting 40 CFR 270.4 which is the permit shield provision. Under Table 2 (Equivalent State Initiated Changes), sections 3745-50-33, 3745-50-34, 3745-50-35, and 3745-50-36 under HWFB, have also been amended. They are broader in scope fee rules, not authorizable in this action. This action involves no other more stringent or broader in scope State requirements. H. Who Handles Permits After the Authorization Takes Effect? Ohio will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Ohio is not yet authorized. I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in Ohio? Ohio is not authorized to carry out its hazardous waste program in “Indian Country,” as defined in 18 U.S.C. 1151. Indian Country includes: 1. All lands within the exterior boundaries of Indian reservations within the State of Ohio; 2. Any land held in trust by the U.S. for an Indian tribe; and 3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country. Therefore, EPA retains the authority to implement and administer the RCRA program in Indian Country. However, at this time, there is no Indian Country within the State of Ohio. J. What is Codification and is EPA Codifying Ohio's Hazardous Waste Program as Authorized in This Rule? Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. Ohio's rules, up to and including those revised June 7, 1991, as corrected August 19, 1991, have previously been codified through the incorporation-by-reference effective February 4, 1992 (57 FR 4162). We reserve the amendment of 40 CFR part 272, subpart KK for the codification of Ohio's program changes until a later date. K. Statutory and Executive Order Reviews This proposed rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law (see Supplementary Information , Section A. Why are Revisions to State Programs Necessary?). Therefore this rule complies with applicable executive orders and statutory provisions as follows: 1. Executive Order 18266: Regulatory Planning Review The Office of Management and Budget has exempted this rule from its review under Executive Order 12866 (58 FR 51735, October 4, 1993). 2. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). 3. Regulatory Flexibility Act After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). 5. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications (i.e., substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government). 6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.) 7. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866 and because the EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. 8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866. 9. National Technology Transfer Advancement Act EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this rule. 10. Executive Order 12988 As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. 11. Executive Order 12630: Evaluation of Risk and Avoidance of Unanticipated Takings EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. 12. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations Because this rule proposes authorization of pre-existing State rules and imposes no additional requirements beyond those imposed by State law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994). 13. Congressional Review Act EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 *et seq.* ) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: October 10, 2007. Walter W. Kovalick, Acting Regional Administrator, Region 5. [FR Doc. E7-21251 Filed 10-26-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070322067-7501-01; I.D. 031407A] RIN 0648-AU03 Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited Species Bycatch Management AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS amends regulations governing salmon bycatch in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to enhance the effectiveness of salmon bycatch measures by exempting pollock vessels from Chinook and Chum Salmon Savings Area closures if they participate in an intercooperative agreement
(ICA)to reduce salmon bycatch, and exempting vessels participating in non-pollock trawl fisheries from Chum Salmon Savings Area closures because these fisheries intercept minimal amounts of salmon. This action is intended to promote the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). DATES: Effective on November 28, 2007. ADDRESSES: Copies of Amendment 84; the final Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for Amendment 84; and the final Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action may be obtained from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region website at *http://www.fakr.noaa.gov* . Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements included in this final rule may be submitted to NMFS at the address above and by e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228, or *jason.anderson@noaa.gov* . SUPPLEMENTARY INFORMATION: Background NMFS manages the U.S. groundfish fisheries of the BSAI in the Exclusive Economic Zone under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600. Pacific salmon are caught incidentally in the BSAI trawl fisheries, especially in the pollock fishery. Of the five species of Pacific salmon, Chinook salmon ( *Onchorynchus tshawytscha* ) and chum salmon ( *O. keta* ) are most often incidentally caught in the pollock fisheries. Pacific salmon are placed into two categories for purposes of salmon bycatch management: Chinook and non-Chinook. The non-Chinook category is comprised of chum, sockeye ( *O. nerka* ), pink ( *O. gorbuscha* ), and coho ( *O. kisutch* ) salmon. However, chum salmon represent about 98 percent of non-Chinook salmon harvested incidentally in the pollock trawl fisheries. For convenience, all non-Chinook salmon are referred to as chum salmon. In October 2005, the Council adopted Amendment 84 to the FMP. Amendment 84 establishes the salmon bycatch intercooperative agreement
(ICA)which allows vessels participating in the directed fisheries for pollock in the Bering Sea to utilize their internal cooperative structure to reduce salmon bycatch using a method called the “voluntary rolling hotspot system” (VRHS). In recommending Amendment 84, the Council recognized that current regulatory management measures, including a bycatch cap that triggered closure of fixed salmon savings areas, have not been effective at reducing salmon bycatch. Amendment 84 provides an alternative approach to managing salmon bycatch which has the potential to be more effective than current regulations. The notice of availability for Amendment 84 was published in the **Federal Register** on March 26, 2007 (72 FR 14069), and the public review and comment period closed on May 25, 2007. NMFS approved Amendment 84 on June 22, 2007. This final rule contains regulatory amendments necessary to implement the provisions of Amendment 84. The proposed rule to implement Amendment 84 was published in the **Federal Register** on April 18, 2007 (72 FR 19454), and the public review and comment period closed on June 4, 2007. The proposed rule contains a description of the management measures adopted by the Council prior to Amendment 84 to limit salmon bycatch, a description of requirements for the salmon bycatch reduction ICA, and a summary of the proposed regulations to implement the Amendment 84. Please refer to the proposed rule for detailed background information as it is not reproduced in this final rule. The purpose of the salmon bycatch avoidance ICA is to use real-time salmon bycatch information to avoid areas of high chum and Chinook salmon bycatch rates. Parties to the ICA include the American Fisheries Act cooperatives, the six Western Alaska Community Development Quota
(CDQ)groups, at least one third party group representing western Alaskans who depend on salmon and have an interest in salmon bycatch reduction, and at least one private firm retained to facilitate bycatch avoidance behavior and information sharing. The ICA utilizes a system of base bycatch rates, assignment of vessels to tiers based on bycatch rates relative to the base rate, a system of closures for vessels in certain tiers, and monitoring and enforcement through private contractual arrangements. Vessels participating in the salmon bycatch ICA are exempted from closures of the Chinook and Chum Salmon Savings Areas in the Bering Sea. In addition, vessels participating in trawl fisheries for species other than pollock are exempt from Chum Salmon Savings Area closures. More information about the salmon bycatch reduction ICA is included in the Classification section of this rule and in the proposed rule (72 FR 19454; April 18, 2007). Response to Comments NMFS received two letters of comment on Amendment 84 and one letter of comment on both the proposed rule and the amendment. These letters contained seven separate comments related to both the proposed rule and the amendment. The following summarizes and responds to these comments. *Comment 1:* While we support the ideas and intent of salmon bycatch management through the Voluntary Rolling Hot Spot
(VRHS)system adopted by Amendment 84, in the absence of an associated limit on salmon bycatch, we have great concerns that this system will not effectively reduce salmon bycatch in compliance with National Standard 9 of the Magnuson-Stevens Act and the Yukon River Salmon Agreement. In fact, the experiences of the first two seasons of operation of the VRHS under an Experimental Fishing Permit have seen some of the highest bycatch numbers on record. *Response:* From 1990 through 2001, BSAI Chinook salmon bycatch averaged around 37,819 individual fish annually, and chum salmon bycatch averaged 69,332. Recently, however, salmon bycatch numbers have increased significantly. In 2003, 54,911 Chinook salmon and 197,091 chum salmon were caught incidentally in the trawl fisheries. In 2004, salmon bycatch increased to 62,493 Chinook and 465,650 chum salmon. Bycatch amounts remained high in 2005 and totaled 74,975 Chinook and 711,939 chum salmon. In 2006, 87,786 Chinook and 326,279 chum salmon were taken. NMFS authorized exempted fishing permits
(EFPs)for the 2006 “B” and 2007 “A” and “B” seasons to allow the pollock fisheries in the Bering Sea to operate under the salmon bycatch ICA that will be implemented by Amendment 84. The EFPs exempted the pollock fleet from salmon savings area closures and allowed them to explore the feasibility of operating under a dynamic salmon bycatch reduction mechanism. One of the objectives of these EFPs was to reduce salmon bycatch, however, as noted by the commenter, salmon bycatch amounts remain high even under the EFPs. Analyses of data collected under the EFPs suggest that salmon bycatch rates and amounts would have been higher without the salmon savings area exemptions that are provided under Amendment 84. A report prepared by representatives of the ICA for the Council concluded that the reduced salmon bycatch rates under the 2006 EFP resulted in estimated savings of salmon from what would otherwise have occurred (18 percent reduction for Chinook and 65 percent reduction for chum). They also reported that the 2007 EFP resulted in an estimated savings of 39,000 Chinook salmon during the “A” season. The primary objective of Amendment 84 is to reduce salmon bycatch. Information in the EA/RIR/FRFA that compares historical bycatch rates inside and outside the existing salmon savings closure areas and the EFP reports indicate that bycatch rates under the EFP have been reduced relative to what they would have been under the existing regulatory structure. Amendment 84 provides participants in the pollock fisheries the flexibility to conduct pollock fishing in areas of relatively lower salmon bycatch rates and to be responsive to current bycatch rates rather than relying on static closure areas that were established based on historical high bycatch rates. The EA/RIR/FRFA shows that the existing regulations caused vessels to fish in areas of higher bycatch rates when the Chinook and Chum Salmon Savings Areas closed. For these reasons, we believe that Amendment 84 is consistent with National Standard 9 because it increases the ability of ICA participants to minimize salmon bycatch to the extent practicable. In addition, we believe that Amendment 84 also is consistent with the Yukon River Salmon Agreement because it is an element of the Council's efforts to reduce bycatch of western Alaska salmon in the BSAI groundfish fisheries. Additionally, the Council continues to work on ways to further reduce salmon bycatch and will evaluate the effectiveness of Amendment 84 in the next few years as it analyzes additional alternatives to reduce salmon bycatch. *Comment 2:* The commenter is concerned with a statement in the EA/RIR/IRFA that there are recent indications of increasing returns to chum and Chinook salmon stocks in Western Alaska. Specifically, the commenter notes that salmon bycatch in the pollock fishery has increased while Chinook salmon runs in the Yukon River and Norton Sound remain at average or below average returns. *Response:* While the EA/RIR/FRFA does contain the general statement quoted in the comment about increasing returns to chum and Chinook stocks in Western Alaska, it also acknowledges, in section 3.4 (Western Alaska Chinook Salmon Stock Status), that there are concerns with the Yukon River and Norton Sound Chinook salmon returns. *Comment 3:* It is unclear on what basis the EA can conclude that “the incidental catch of Chinook salmon by the BSAI trawl fisheries is not thought to be extremely detrimental to the health and viability of those stocks.” Although the EA does recognize there is some uncertainty in that analysis, the conclusion reached is that Amendment 84 will have limited impacts on the salmon stocks. *Response:* The EA/RIR/FRFA provides an overview of the information known about the origin of salmon bycatch in the BSAI groundfish fisheries and the status of western Alaska salmon stocks. Admittedly, NMFS has limited information on salmon biomass and genetic river of origin for salmon bycatch species. Research is underway to address these information deficiencies. However, without this information, NMFS is unable to determine if high bycatch amounts in the pollock fishery are due to high salmon abundance in the Bering Sea, or how these high bycatch amounts affect western Alaska salmon runs. Throughout the EA/RIR/IRFA and discussion of the issue, the Council recognized that salmon bycatch is an important issue and that salmon of western Alaska origin that are caught in the groundfish fisheries are not available for escapement, subsistence fisheries, and commercial fisheries. Amendment 84 provides more flexible regulations that can better respond to changes in salmon bycatch rates, and the Council believes that it is an improvement to the existing regulatory structure. In addition, the Council is continuing to work to identify additional measures that could be implemented to reduce salmon bycatch amounts. *Comment 4:* Two elements of the VRHS system of closures limit the system's ability to reduce bycatch. First, the method of setting the base rate for Chinook salmon in the “A” season at the last “A” season's average and then adjusting the rate three weeks into the season can result in initially setting the base rate high when salmon bycatch was high in the previous year. This occurred in the 2007 A season. The effect of this method is that most coops move to Tier 1, where closures do not apply. While in reality boats responded to the advisory closures throughout the remainder of the A season as if they were in Tier 3, this action was not required under the VRHS system. Second, limitations on closure areas to 1,000 square miles represent an enormous reduction from the amount of area closed under the regulatory Salmon Savings Areas and it is not clear in the analysis why such a limit is necessary or how a VRHS system with such a limit will achieve salmon bycatch reductions. *Response:* The specific components of the ICA were proposed to the Council as a package by the members of the ICA and analyzed as Alternative 3 in the EA/RIR/IRFA. The Secretary concurs with the Council's selection of this alternative as its preferred alternative because it allows the parties to the ICA to develop a more flexible system for responding to salmon bycatch than the existing regulations. Calculation of the base rates and the minimum size of the closure areas are two of many elements of the ICA developed by the parties. The Chinook salmon initial base rate is based on the average bycatch rate in the previous A season, as noted by the commenter. However, the regulations also place an upper limit of 0.06 Chinook per metric ton of pollock as a maximum initial base rate for the A season. Therefore, the initial base rate is not necessarily always as high as the previous year's average bycatch rate. The proposed regulations specify that the maximum ICA Chinook savings area closures during the A season must be at least 1000 square miles. However, the parties to the ICA could specify larger closure areas if they determined that this was necessary to accomplish the goals of reducing salmon bycatch. In general, the objective of Amendment 84 and its implementing regulations is to allow the parties to the ICA to develop a system of managing salmon bycatch that includes identifying the elements of the ICA that the parties believe will best accomplish the goals of reducing salmon bycatch. At the time the Council took final action on Amendment 84, it also expressed its intent to review salmon bycatch performance under the ICA and to make adjustments in the future, if necessary. Specific elements of the ICA such as the base rate calculations and the size of the closure areas may be reviewed in the future as performance under the ICA is evaluated by the Council. *Comment 5:* We strongly support the voluntary rolling hotspot approach to managing Bering Sea salmon bycatch. As noted in the EA/RIR/FRFA, Amendment 84 has the potential to reduce Bering Sea salmon bycatch more than the status quo. If that potential is realized, Amendment 84 would reduce the foregone value of salmon bycatch and increase the overall benefits of bycatch reduction. *Response:* NMFS agrees. *Comment 6:* The analysis prepared for this action indicates that very little chum bycatch occurs in the non-pollock fisheries. Additionally, virtually no non-Chinook salmon are caught in the flatfish, rockfish, or Atka mackerel fisheries within the Catcher Vessel Operational Area. Therefore, we recommend approval of the component of Amendment 84 that applies closures of the Chum Salmon Savings Area only to vessels conducting directed fishing for pollock. In addition, if there are additional delays in implementing Amendment 84, we recommend implementation of this exemption while other issues of concern are addressed. *Response:* Amendment 84 was approved on June 22, 2007, and this final rule revises regulations at 50 CFR part 679 to apply closures of the Chum Salmon Savings Area only to vessels conducting directed fishing for pollock that are not participating in an approved salmon bycatch ICA. *Comment 7:* We suggest two changes from the proposed rule. First, several paragraphs of the proposed rule reference Tier assignments at § 679.21(g)(6)(iii)(C). We believe these references should be § 679.21(g)(5)(iii)(C). Second, regulations at § 679.21(g)(5)(vii) require that if a cooperative Board of Directors fails to assess a minimum uniform assessment within 60 days of receiving a notice of an apparent violation, the information used to determine if an apparent violation was committed must be disseminated to all parties to the ICA. The Intercooperative recently addressed several apparent violations of ICA savings area closures. In the process of doing so, it became apparent that 60 days is not sufficient for a vessel captain to gather evidence necessary to defend the violation, the captain to submit this information to the Board of Directors, and the Board of Directors to issue a reasoned decision concerning whether a violation was committed. Therefore, we recommend revising the final rule so that regulations at § 679.21(g)(5)(vii) reflect a 180 day time limit. *Response:* NMFS agrees. The reference correction noted in the comment is correct and is made in the final rule. In addition, an increase in the time period for ICA members to respond to a notice of apparent violation is reasonable and will improve the administrative process under the ICA. Therefore, this revision also will be made in the final rule. Changes From the Proposed Rule Regulations at § 679.21(g)(5)(iii)(A)( *1* ) describe the initial base rate calculation for Chinook salmon. In the first sentence, the final rule adds the words “in the” between the words “season” and “prior” to clarify that sentence. Regulations at § 679.21(g)(5)(iii)(B)( *5* ) and § 679.21(g)(5)(iii)(A)(4) describe fishing restrictions for vessels assigned to Tiers. In the first sentence of both paragraphs, the final rule removes the words “for seven days” from the end of the sentence, and adds them between the word “pollock” and the comma in the same sentence. This clarifies that the ICA must require chum savings area closures announced on Thursdays must remain in place for seven days for vessels assigned to Tier 3. Regulations at § 679.21(g)(5)(iii)(C) describe the salmon bycatch reduction ICA requirements for cooperative Tier assignments. However, proposed regulations erroneously referred to this paragraph as § 679.21(g)(6)(iii)(C). These references are corrected in the final rule regulatory text. Regulations at § 679.21(g)(5)(vii) require that if a cooperative Board of Directors fails to assess a minimum uniform assessment within 60 days of receiving a notice of an apparent violation, the information used to determine if an apparent violation was committed must be disseminated to all parties to the ICA. As noted by public comment above, the 60 day time limit may be constraining, and is not consistent with its intent to provide ample opportunity for internal ICA penalty processes to occur. Therefore, § 679.21(g)(5)(vii) is revised to a 180-day time limit. Regulations at § 679.61(f)(2)(vii) describe annual reporting requirements for AFA fishery cooperatives. The final rule adds an apostrophe to the word “vessels” to indicate its possessive form. Classification The Administrator, Alaska Region, NMFS determined that Amendment 84 is necessary for the conservation and management of the groundfish fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws. This final rule has been determined not to be significant for the purposes of Executive Order 12866. NMFS prepared a Final Regulatory Flexibility Analysis. The FRFA incorporates the IRFA, a summary of the significant issues raised by public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ). The following summarizes the FRFA. Objectives and Need for this Action This action exempts vessels participating in directed pollock fishing from Chinook and Chum Salmon Savings Area closures if they participate in a salmon bycatch reduction ICA. The ICA is intended to reduce salmon bycatch rates in the BSAI AFA and CDQ pollock fisheries. Additionally, this action exempts all non-pollock trawl vessels from the Chum Salmon Savings Area closure. Number of Small Entities Affected by the Rule In 2005 about 116 trawl catcher vessels operated in the BSAI with gross revenues less than $4.0 million. NMFS records indicate that 111 BSAI catcher vessels were members of AFA cooperatives. Because of Small Business Administration affiliation guidelines, all AFA vessels are considered large entities. Therefore, five BSAI trawl catcher vessels appear to qualify as small entities. Additionally, NMFS' 2005 data indicate that three non-AFA catcher processor trawl vessels had gross revenues less than $4.0 million. Significant Alternatives Considered and Steps Taken to Minimize the Significant Economic Impacts to Small Entities Salmon bycatch in the Bering Sea pollock trawl fishery has increased in recent years under Alternative 1, the status quo. This translates into foregone salmon value, assuming full terminal harvest of salmon bycatch, of nearly $1 million for Chinook and more than $250 thousand for chum salmon. These values very likely overstate the actual harvest that might have occurred if salmon bycatch had not been taken in the Bering Sea pollock trawl fishery. Unfortunately, it is not possible to estimate actual harvest value more accurately at this time. However, the increases in salmon bycatch under the status quo likely result in increases in foregone value and decreased benefits of bycatch reduction. The status quo could also lead to future restrictions on the Bering Sea pollock trawl fleet to reduce the incidental take of Chinook salmon currently listed under the Endangered Species Act. Alternative 2 would eliminate the salmon savings closure areas altogether. The result would likely be reduced operational costs, improved vessel safety, improved product quality, and reduced management and enforcement costs. However, in the absence of any bycatch reduction measures this alternative may result in further increase in salmon bycatch in the Bering Sea pollock trawl fishery. Were that to occur, the foregone value of such bycatch would increase and the associated benefits of bycatch reduction would decrease, possibly dramatically. This could also result in the increased take of listed Chinook salmon in the Bering Sea pollock trawl fishery. Alternative 3 is the preferred alternative. It exempts vessels participating in a salmon bycatch reduction ICA from the BSAI salmon savings area closures. It is expected to reduce salmon bycatch rates in the BSAI pollock fisheries by penalizing participants that exhibit high salmon bycatch rates and rewarding participants that exhibit low salmon bycatch rates. Vessels participating in a salmon bycatch reduction ICA will be subject to a dynamic system of rolling “hot spot” closures dictated by the ICA and designed to reduce salmon bycatch. This alternative likely will reduce operational costs, improve vessel safety, and improve product quality. Alternative 3 also has the potential to reduce salmon bycatch more than the status quo management measures. If that potential is realized, Alternative 3 will reduce foregone value of salmon bycatch and increase the overall benefits of bycatch reduction. Alternative 3 also provides some mitigation possibilities for western Alaska subsistence salmon user groups by including them as parties to the ICA and enabling them to enforce compliance with the ICA's salmon bycatch reduction measures in Bering Sea pollock fisheries through private contractual arrangements. Alternative 3 will reduce management and enforcement costs for government agencies by transferring much of that cost to the fishing industry. The industry has volunteered to bear this cost in hopes of reducing operational costs associated with the status quo while at the same time attempting to reduce salmon bycatch. If bycatch is not reduced under Alternative 3, additional restrictions on the fleet could result. Alternative 3, through the suboption to option 2, exempts directly regulated small entities participating in the BSAI Pacific cod and/or flatfish trawl fisheries from all salmon bycatch caps, closures, voluntary salmon bycatch management measures, etc. Pacific cod and/or flatfish trawl fisheries in the BSAI account for a negligible share of the total salmon bycatch attributable to trawl fisheries. At the same time, many of the vessels that prosecute these fisheries are assumed to be “small” (as defined by the Regulatory Flexibility Act). Therefore, adoption of the suboption to option 2 that exempts BSAI Pacific cod and/or flatfish trawl fisheries from the regulatory provisions of the salmon bycatch reduction program removes all adverse economic burdens from this action on all small entities operating in these BSAI groundfish trawl fisheries. Issues Raised by Public Comments on the IRFA No comments were received on the IRFA. Recordkeeping, Reporting, and other Compliance Requirements Depending on the alternative chosen, the subsequent proposed regulation may impose new recordkeeping or reporting requirements on directly regulated small entities. This would be accurate for Alternative 3, which eliminates existing salmon bycatch prevention measures, and replaces them with an industry funded and operated salmon bycatch reduction program. Under this program, the ICA will require vessels to report bycatch and position data to an industry hired contractor. These activities could conceivably increase recordkeeping and reporting requirements for regulated small entities. However, under the suboption to option 2, virtually all the small entities directly regulated under this action would be exempted from the program's provisions. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to this rule serves as the small entity compliance guide. It applies to trawl catcher vessels and catcher/processors operating in the BSAI. Affected entities are well informed of compliance measures for regulations implementing Amendment 84, due to their involvement in the Council process leading to its adoption of Amendment 84, and industry development of the VRHS system of closures. These entities have assessed their ability to comply with Amendment 84 regulations and provided comments to NMFS on the proposed rule. NMFS has incorporated some of these comments in the final rule. Implementing regulations at §§ 679.2, 679.7, 679.21, 679.22 and 679.61 detail all revisions and additions to definitions, prohibitions, prohibited species management, area closures, and recordkeeping and reporting requirements. This action does not require additional compliance from small entities that is not described in this final rule. Copies of the final rule are available from NMFS (see ADDRESSES ) and at the following website: *http://www.fakr.noaa.gov* . Collection-of-Information This final rule includes collection-of-information requirements subject to the Paperwork Reduction Act
(PRA)which have been approved by the Office of Management and Budget under Control Number 0648-0401. Public reporting burden per response is estimated to average 40 hr for salmon bycatch reduction intercooperative agreements; 15 min for renewal of an ICA; 28 hr for a preliminary annual report; 12 hr for a final annual report; and 4 hr for ICA appeal. Reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments on these or any other aspects of the collection of information to NMFS (see ADDRESSES ) and e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This final rule was developed after meaningful consultation with tribal representatives and Alaska Native corporations. List of Subjects in 50 CFR Part 679 Alaska, Fisheries, Reporting and recordkeeping requirements. Dated: October 23, 2007. Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 679 is amended as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for part 679 continues to read as follows: Authority: 16 U.S.C. 773 *et seq.* ; 1801 *et seq.* ; 3631 *et seq.* ; and Pub. L. 108 199, 118 Stat. 110. 2. In § 679.2, the definition of “Salmon bycatch reduction intercooperative agreement (ICA)” is added in alphabetical order to read as follows: § 679.2 Definitions. *Salmon bycatch reduction intercooperative agreement (ICA)* is a voluntary chum and Chinook salmon catch avoidance agreement, as described at § 679.21(g) and approved by NMFS, for directed pollock fisheries in the Bering Sea subarea. 3. In § 679.7, paragraphs (d)(9) and (d)(10) are revised to read as follows: § 679.7 Prohibitions.
(d)* * *
(9)For the operator of an eligible vessel, use trawl gear to harvest pollock CDQ in the Chinook Salmon Savings Area between January 1 and April 15, and between September 1 and December 31, after the CDQ group's Chinook salmon PSQ is attained, unless the vessel is participating in a salmon bycatch reduction ICA under § 679.21(e)(7)(ix).
(10)For the operator of an eligible vessel, use trawl gear to harvest pollock CDQ in the Chum Salmon Savings Area between September 1 and October 14 after the CDQ group's non-Chinook salmon PSQ is attained, unless the vessel is participating in a salmon bycatch reduction ICA under § 679.21(e)(7)(ix). 4. In § 679.21, paragraph (e)(7)(vii) is revised and paragraphs (e)(7)(ix) and
(g)are added to read as follows: § 679.21 Prohibited species bycatch management.
(e)* * *
(7)* * *
(vii)*Chum salmon.* If the Regional Administrator determines that 42,000 non-Chinook salmon have been caught by vessels using trawl gear during August 15 through October 14 in the CVOA, defined under § 679.22(a)(5) and in Figure 2 to this part, NMFS will prohibit directed fishing for pollock for the remainder of the period September 1 through October 14 in the Chum Salmon Savings Area as defined in Figure 9 to this part.
(ix)*Exemptions.*
(A)Trawl vessels participating in directed fishing for pollock and operating under a salmon bycatch reduction ICA approved by NMFS are exempt from closures in the Chum Salmon Savings Area described at paragraph (e)(7)(vii) of this section. See also § 679.22(a)(10).
(B)Trawl vessels participating in directed fishing for pollock and operating under a salmon bycatch reduction ICA approved by NMFS are exempt from closures in area 2 of the Chinook Salmon Savings Area described at paragraph (e)(7)(viii) of this section.
(g)*Requirements for vessels participating in a salmon bycatch reduction ICA* —(1) *Who must file the salmon bycatch reduction ICA?* The representative for the salmon bycatch reduction ICA identified at paragraph (g)(5)(v) of this section must file a copy of the initial ICA and any amended salmon bycatch reduction ICA with NMFS.
(2)*With whom must the initial salmon bycatch reduction ICA and an amended salmon bycatch reduction ICA be filed?* The ICA representative must send a signed copy of the initial salmon bycatch reduction ICA and any amended salmon bycatch reduction ICA to the NMFS Alaska Region. The mailing address for the Administrator, NMFS Alaska Region is P.O. Box 21668, Juneau, AK 99802. The street address for courier delivery is 709 West 9th St., Suite 401, Juneau, AK 99801.
(3)*What is the deadline for filing?* In order for any ICA participant to be exempt from salmon savings area closures as described at paragraphs (e)(7)(ix)(A) and
(B)of this section and at § 679.22(a)(10), the salmon bycatch reduction ICA must be filed in compliance with the requirements of this section, and approved by NMFS. The initial salmon bycatch reduction ICA must be received by NMFS by December 1, 2007, for the 2008 fishing year. Exemptions from salmon savings area closures will expire upon termination of the initial ICA, expiration of the initial ICA, or if superseded by a NMFS-approved amended salmon bycatch reduction ICA.
(4)*How is the initial and an amended salmon bycatch reduction ICA approved by NMFS?* NMFS will approve the initial or an amended salmon bycatch reduction ICA if it meets all the requirements specified in paragraph (g)(5) of this section. If NMFS disapproves a salmon bycatch reduction ICA, the representative identified at (g)(5)(v) of this section may resubmit a revised salmon bycatch reduction ICA or file an administrative appeal as set forth under the administrative appeals procedures described at § 679.43.
(5)*What are the minimum information requirements for the salmon bycatch reduction ICA?* The salmon bycatch ICA must include the following provisions:
(i)The names of the AFA cooperatives, CDQ groups, and third party groups that are parties to the ICA. The ICA must identify at least one third party group. Third party groups include any organizations representing western Alaskans who depend on Chinook and chum salmon and have an interest in salmon bycatch reduction but do not directly fish in a groundfish fishery. The ICA must identify one entity retained to facilitate vessel bycatch avoidance behavior and information sharing. Collectively, these groups are known as parties to the ICA. Parties to the ICA must agree to comply with all provisions of the ICA;
(ii)The names, Federal fisheries permit numbers, and USCG vessel identification numbers of vessels subject to the salmon bycatch reduction ICA;
(iii)Provisions that dictate salmon bycatch avoidance behaviors for vessel operators subject to the ICA, including:
(A)*“A” season salmon bycatch management* —( *1* ) *Initial base rate calculation for Chinook salmon.* The initial “A” season Chinook base rate shall be calculated by dividing the total number of Chinook taken incidentally in the “A” season in the prior year by the total number of metric tons of “A” season pollock catch during the prior year, except that if the initial “A” season Chinook base rate for any given year is less than or equal to 0.04 Chinook per metric ton of pollock, the initial base rate shall be 0.04 Chinook per metric ton, and if the initial base rate for any given year is equal to or greater than 0.06 Chinook per metric ton of pollock, the initial base rate shall be 0.06 Chinook per metric ton. Base rate calculations shall include Chinook salmon and pollock caught in both the CDQ and non-CDQ pollock directed fisheries. ( *2* ) *Inseason adjustments to the Chinook salmon base rate calculation.* On February 14 of each year, the “A” season Chinook base rate shall be recalculated. The recalculated base rate shall be the Chinook bycatch rate for the current year, calculated by dividing the total number of Chinook salmon taken incidentally in the current “A” season by the total number of metric tons of “A” season pollock catch during the current season. The recalculated base rate shall be used to determine bycatch avoidance areas. ( *3* ) *ICA salmon savings area notices.* On January 30 of each year and each Thursday and Monday thereafter for the duration of the pollock “A” season, the entity retained to facilitate vessel bycatch avoidance behavior and information sharing identified in paragraph (g)(5)(i) of this section must provide notice to the parties to the salmon bycatch reduction ICA and NMFS identifying one or more areas designated as “ICA Chinook Savings Areas” by a series of latitude and longitude coordinates. The Thursday notice of ICA Chinook savings area designations must be effective from 6 p.m. Alaska local time the following Friday through 6 p.m. Alaska local time the following Tuesday. The Monday notice must be effective from 6 p.m. Alaska local time the following Tuesday through 6 p.m. Alaska local time the following Friday. For any ICA salmon savings area notice, the maximum total area closed must be at least 1,000 square miles. ( *4* ) *Fishing restrictions for vessels assigned to Tiers as described at paragraph (g)(5)(iii)(C) of this section.* ICA Chinook savings area closures announced on Thursdays must be closed to directed fishing for pollock for seven days, including pollock CDQ, by vessels assigned to Tier 3. ICA Chinook savings area closures announced on Thursdays must be closed to vessels assigned to Tier 2 through 6 p.m. Alaska local time on the following Tuesday. Vessels assigned to Tier 1 may operate in any area designated as an ICA Chinook savings area.
(B)*“B” season salmon bycatch management* —( *1* ) *“B” season Chinook salmon.* For the “B” season of the 2008 fishing year, the Chinook salmon base rate shall be 0.05 Chinook salmon per metric ton of pollock. For the “B” season of the 2009 fishing year and each “B” season thereafter, the base rate shall be based on the Chinook salmon bycatch during a representative period of the prior year's “B” season. The recalculated base rate shall be used to determine bycatch avoidance areas. Base rate calculations shall include Chinook salmon and pollock caught in both the CDQ and non-CDQ pollock directed fisheries. ( *2* ) *Non-Chinook salmon.* The initial “B” season non-Chinook salmon base rate shall be 0.19 non-Chinook salmon per metric ton of pollock. ( *3* ) *Inseason adjustments to the non-Chinook base rate calculation.* Beginning July 1 of each fishing year, and on each Thursday during “B” season, the “B” season non-Chinook base rate shall be recalculated. The recalculated non-Chinook base rate shall be the three week rolling average of the “B” season non-Chinook bycatch rate for the current year. The recalculated base rate shall be used to determine bycatch avoidance areas. ( *4* ) *ICA salmon savings area notices.* On each Thursday and Monday after June 10 of each year for the duration of the pollock “B” season, the entity retained to facilitate vessel bycatch avoidance behavior and information sharing identified in paragraph (g)(5)(i) of this section must provide notice to the parties to the salmon bycatch reduction ICA and NMFS identifying one or more areas designated as “ICA Chinook Savings Areas” and/or “ICA Chum Savings Areas” by a series of latitude and longitude coordinates. The Thursday notice of ICA Chinook savings area designations must be effective from 6 p.m. Alaska local time the following Friday through 6 p.m. Alaska local time the following Tuesday. The Monday notice must be effective from 6 p.m. Alaska local time the following Tuesday through 6 p.m. Alaska local time the following Friday. For any ICA salmon savings area notice, the maximum total area closed must be at least 3,000 square miles for ICA chum savings area closures, and 500 square miles for ICA Chinook savings area closures. ( *5* ) *Fishing restrictions for vessels assigned to Tiers as described at paragraph (g)(5)(iii)(C) of this section.* ICA chum savings area closures announced on Thursdays must be closed to directed fishing for pollock for seven days, including pollock CDQ, by vessels assigned to Tier 3. ICA chum savings area closures announced on Thursdays must be closed to vessels assigned to Tier 2 through 6 p.m. Alaska local time on the following Tuesday. Vessels assigned to Tier 1 may operate in any area designated as an ICA chum savings area. ICA Chinook savings areas must be closed to fishing by all vessels identified at paragraph (g)(5)(iii)(C) of this section.
(C)*Cooperative tier assignments.* Initial and subsequent base rate calculations must be based on each cooperative's pollock catch for the prior two weeks and the associated bycatch of Chinook or non-Chinook salmon taken by its members. Base rate calculations shall include salmon bycatch and pollock caught in both the CDQ and non-CDQ pollock directed fisheries. Cooperatives with salmon bycatch rates of less than 75 percent of the base rate shall be assigned to Tier 1. Cooperatives with salmon bycatch rates of equal to or greater than 75 percent, but less than or equal to 125 percent of the base rate shall be assigned to Tier 2. Cooperatives with salmon bycatch rates of greater than 125 percent of the base rate shall be assigned to Tier 3. Bycatch rates for Chinook salmon must be calculated separately from non-Chinook salmon, and cooperatives must be assigned to tiers separately for Chinook and non-Chinook salmon bycatch.
(iv)Internal monitoring and enforcement provisions to ensure compliance of fishing activities with the provisions of the ICA. The ICA must include provisions allowing any party of the ICA to bring civil suit or initiate a binding arbitration action against another for breach of the ICA. The ICA must include minimum annual uniform assessments for any violation of savings area closures of $10,000 for the first offense, $15,000 for the second offense, and $20,000 for each offense thereafter;
(v)The name, phone number, and business address of the person who will annually file the ICA with NMFS;
(vi)Provisions requiring the parties to conduct an annual compliance audit, and to cooperate fully in such audit, including providing information required by the auditor. The compliance audit must be conducted by a non-party entity, and each party must have an opportunity to participate in selecting the non-party entity. If the non-party entity hired to conduct a compliance audit discovers a previously undiscovered failure to comply with the terms of the ICA, the non-party entity must notify all parties to the ICA of the failure to comply and must simultaneously distribute to all parties of the ICA information used to determine the failure to comply occurred and must include such notice(s) in the compliance report described in § 679.61(f)(2)(vii).
(vii)Provisions requiring data dissemination in certain circumstances. If the entity retained to facilitate vessel bycatch avoidance behavior and information sharing identified at paragraph (g)(5)(i) of this section determines that an apparent violation of an ICA savings area closure has occurred, that entity must promptly notify the Board of Directors of the cooperative to which the vessel involved belongs. If this Board of Directors fails to assess a minimum uniform assessment within 180 days of receiving the notice, the information used by the entity retained to facilitate vessel bycatch avoidance behavior to determine if an apparent violation was committed must be disseminated to all parties to the ICA. 5. In § 679.22, paragraph (a)(10) is revised to read as follows: § 679.22 Closures.
(a)* * *
(10)*Chum Salmon Savings Area.* Directed fishing for pollock by vessels using trawl gear is prohibited from August 1 through August 31 in the Chum Salmon Savings Area defined at Figure 9 to this part (see also § 679.21(e)(7)(vii)). Vessels using trawl gear participating in directed fishing for pollock, including pollock CDQ, and operating under a salmon bycatch reduction ICA are exempt from closures in the Chum Salmon Savings Area. See also § 679.21(e)(7)(vii). 6. In § 679.61, paragraph (f)(2)(vi) is added to read as follows: § 679.61 Formation and operation of fishery cooperatives.
(f)* * *
(2)* * *
(vi)The annual report must indicate the number of salmon taken by species and season, estimate the number of salmon avoided as demonstrated by the movement of fishing effort away from salmon savings areas, include the results of the compliance audit described at § 679.21(g)(6)(vi), and list each vessel's number of appearances on the weekly dirty 20 lists for both salmon species. [FR Doc. E7-21256 Filed 10-26-07; 8:45 am] BILLING CODE 3510-22-S 72 208 Monday, October 29, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM381; Notice No. 25-07-13-SC] Special Conditions: Boeing Model 747 Series Airplanes; Seats With Non-Traditional, Large, Non-Metallic Panels AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This action proposes special conditions for Boeing Model 747 series airplanes. These airplanes will have a novel or unusual design feature(s) associated with seats that include non-traditional, large, non-metallic panels that would affect survivability during a post-crash fire event. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: We must receive your comments by November 28, 2007. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM381, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM381. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Alan Sinclair, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2195; facsimile
(425)227-1232; electronic mail alan.sinclair@faa.gov. SUPPLEMENTARY INFORMATION: Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Proposed Change to Special Condition Number 4 The FAA previously notified the public of our intent to issue special conditions for seats with non-traditional, large, non-metallic panels on various airplane makes and models. Notice of Proposed Special Conditions No. 25-06-13-SC, applicable to Boeing Model 737 series airplanes, was published in the **Federal Register** on November 9, 2006 (71 FR 65761). The special conditions were issued on June 29, 2007 (Docket No. NM 359, Special Conditions No. 25-358-SC), published in the **Federal Register** on July 10, 2007 (72 FR 37425), and became effective on August 9, 2007. Both the Notice and the Final Special Conditions contained these words: We anticipate that seats with non-traditional, large, non-metallic panels will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of seats with non-traditional, large, non-metallic panels until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of airplane makes and models will ensure a level playing field for the aviation industry. Special condition number 4 in the 737 special conditions limits the applicability of the special conditions to new seat certification programs applied for after the effective date of the special conditions. In these proposed special conditions the FAA proposes to change the applicability to make the special conditions applicable to new seat certification programs that are approved after the effective date of the special conditions. This change could affect pending as well as future project applications. The rationale behind this proposed change is that these seat installations affect survivability during a post-crash fire event and should be implemented as soon as possible. Additionally, the public has been previously notified of the FAA's intent to issue similar special conditions on other airplane makes and models. Background On August 8, 2005, Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124, applied for a design change to Type Certificate No. A20WE for installation of seats that include non-traditional, large, non-metallic panels in Boeing Model 747 series airplanes. The Boeing Model 747 series airplanes, currently approved under Type Certificate No. A20WE, are swept-wing, conventional tail, four engine, turbofan-powered, dual aisle, large-sized transport category airplanes. The applicable regulations to airplanes currently approved under Type Certificate No. A20WE do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat release and smoke emission requirements. Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14 Code of Federal Regulations (CFR), part 25, Appendix F, parts IV and V, heat release and smoke emission requirements. Type Certification Basis Under the provisions of 14 CFR 21.101, Boeing must show that the Model 747 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A20WE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A20WE are as follows: • *For Model 747-100, -100B, -100B SUD, -200B, -200C, -300, 747SR and 747SP airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-8, Amendment 25-15, Amendment 25-17, Amendment 25-18, Amendment 25-20 and Amendment 25-39. • *For Model 747-400 airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-59. For Model 747-400F airplanes, Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-67. • *For Model 747-400D airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-70. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 747 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The Boeing Model 747 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of the cabin in the case of fire. These seats are considered a novel design for transport category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established. The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels in their designs. In order to provide a level of safety that is equivalent to that afforded to the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels. Definition of “Non-Traditional, Large, Non-Metallic Panel” A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: Seat backs, bottoms and leg/foot rests, kick panels, back shells, credenzas and associated furniture. Examples of traditional exempted parts of the seat include: Arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds. Clarification of “Exposed” “Exposed” is considered to include panels that are directly exposed to the passenger cabin in the traditional sense, and panels that are enveloped, such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials must still comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments. Discussion In the early 1980s the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large surface area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853 entitled “Compartment interiors” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply. At the time these standards were written the potential application of the requirements of heat release and smoke emission to seats was explored. The seat frame itself was not a concern because it was primarily made of aluminum and there were only small amounts of non-metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat release and smoke requirements. The requirements therefore did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985) and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.” Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.” In the late 1990s, the FAA issued Policy Memorandum 97-112-39, *Guidance for Flammability Testing of Seat/Console Installations,* October 17, 1997 ( *http://rgl.faa.gov* ). That memo was issued when it became clear that seat designs were evolving to include large, non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large surface area panels must comply with heat release and smoke emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event. In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat release and smoke emissions requirements. We have determined that special conditions would be promulgated to apply the standards defined in 14 CFR 25.853(d) to seats with large, non-metallic panels in their design. Applicability As discussed above, these special conditions are applicable to Boeing Model 747 series airplanes. It is not our intent, however, to require seats with large, non-metallic panels to meet § 25.853, Appendix F, parts IV and V, if they are installed in cabins of airplanes that otherwise are not required to meet these standards. Because the heat release and smoke testing requirements of § 25.853, Appendix F, parts IV and V, are not part of the type certification basis of the Model 747, these special conditions are only applicable if the Model 747 series airplanes are in 14 CFR part 121 operations. Section 121.312 requires compliance with the heat release and smoke testing requirements of § 25.853, for certain airplanes, irrespective of the type certification bases of those airplanes. For the Model 747, these are the airplanes that would be affected by these special conditions. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Proposed Special Conditions Accordingly, the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for Boeing Model 747 series airplanes. 1. Except as provided in paragraph 3 of these special conditions, compliance with Title 14 CFR part 25, Appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may either be a single component or multiple components in a concentrated area in their design. 2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with special condition Number 1, above. A triple seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard seat place 1 square foot, middle 1 square foot, and inboard 2.5 square feet). 3. Seats do not have to meet the test requirements of Title 14 CFR part 25, Appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include: a. Airplanes with passenger capacities of 19 or less, b. Airplanes that do not have § 25.853, Amendment 25-61 or later, in their certification basis and do not need to comply with the requirements of 14 CFR § 121.312, and c. Airplanes exempted from § 25.853, Amendment 25-61 or later. 4. Only airplanes associated with new seat certification programs approved after the effective date of these special conditions will be affected by the requirements in these special conditions. Previously certificated interiors on the existing airplane fleet and follow-on deliveries of airplanes with previously certificated interiors are not affected. Issued in Renton, Washington, on October 19, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-21236 Filed 10-26-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM382; Notice No. 25-07-14-SC] Special Conditions: Boeing Model 767 Series Airplanes; Seats With Non-Traditional, Large, Non-Metallic Panels AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This action proposes special conditions for Boeing Model 767 series airplanes. These airplanes will have a novel or unusual design feature(s) associated with seats that include non-traditional, large, non-metallic panels that would affect survivability during a post-crash fire event. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: We must receive your comments by November 28, 2007. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM382, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM382. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Alan Sinclair, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2195; facsimile
(425)227-1232; electronic mail *alan.sinclair@faa.gov* . SUPPLEMENTARY INFORMATION: Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Proposed Change to Special Condition Number 4 The FAA previously notified the public of our intent to issue special conditions for seats with non-traditional, large, non-metallic panels on various airplane makes and models. Notice of Proposed Special Conditions No. 25-06-13-SC, applicable to Boeing Model 737 series airplanes, was published in the **Federal Register** on November 9, 2006 (71 FR 65761). The special conditions were issued on June 29, 2007 (Docket No. NM 359, Special Conditions No. 25-358-SC), published in the **Federal Register** on July 10, 2007 (72 FR 37425), and became effective on August 9, 2007. Both the Notice and the Final Special Conditions contained these words: We anticipate that seats with non-traditional, large, non-metallic panels will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of seats with non-traditional, large, non-metallic panels until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of airplane makes and models will ensure a level playing field for the aviation industry. Special condition number 4 in the 737 special conditions limits the applicability of the special conditions to new seat certification programs applied for after the effective date of the special conditions. In these proposed special conditions the FAA proposes to change the applicability to make the special conditions applicable to new seat certification programs that are approved after the effective date of the special conditions. This change could affect pending as well as future project applications. The rationale behind this proposed change is that these seat installations affect survivability during a post-crash fire event and should be implemented as soon as possible. Additionally, the public has been previously notified of the FAA's intent to issue similar special conditions on other airplane makes and models. Background On August 8, 2005, Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124, applied for a design change to Type Certificate No. A1NM for installation of seats that include non-traditional, large, non-metallic panels in Boeing Model 767 series airplanes. The Boeing Model 767 series airplanes, currently approved under Type Certificate No. A1NM, are swept-wing, conventional tail, twin-engine, turbofan-powered, dual aisle, medium-sized transport category airplanes. The applicable regulations to airplanes currently approved under Type Certificate No. A1NM do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat release and smoke emission requirements. Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14 Code of Federal Regulations (CFR), part 25, Appendix F, parts IV and V, heat release and smoke emission requirements. Type Certification Basis Under the provisions of 14 CFR 21.101, Boeing must show that the Model 767 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A1NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A1NM are as follows: • *For Model 767-200 and -300 airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-37. • *For Model 767-400ER airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-37 with the exception listed: Section 25.853(d)(3), Compartment interiors, at Amendment 25-72. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 767 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 767 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The Boeing Model 767 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of the cabin in the case of fire. These seats are considered a novel design for transport category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established. The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels in their designs. In order to provide a level of safety that is equivalent to that afforded to the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels. Definition of “Non-Traditional, Large, Non-Metallic Panel” A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: Seat backs, bottoms and leg/foot rests, kick panels, back shells, credenzas and associated furniture. Examples of traditional exempted parts of the seat include: Arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds. Clarification of “Exposed” “Exposed” is considered to include panels that are directly exposed to the passenger cabin in the traditional sense, and panels that are enveloped, such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials must still comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments. Discussion In the early 1980s the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large surface area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853 entitled “Compartment interiors” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply. At the time these standards were written the potential application of the requirements of heat release and smoke emission to seats was explored. The seat frame itself was not a concern because it was primarily made of aluminum and there were only small amounts of non-metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat release and smoke requirements. The requirements therefore did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985) and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.” Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.” In the late 1990s, the FAA issued Policy Memorandum 97-112-39, *Guidance for Flammability Testing of Seat/Console Installations* , October 17, 1997 ( *http://rgl.faa.gov* ). That memo was issued when it became clear that seat designs were evolving to include large, non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large surface area panels must comply with heat release and smoke emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event. In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat release and smoke emissions requirements. We have determined that special conditions would be promulgated to apply the standards defined in 14 CFR 25.853(d) to seats with large, non-metallic panels in their design. Applicability As discussed above, these special conditions are applicable to Boeing Model 767 series airplanes. It is not our intent, however, to require seats with large, non-metallic panels to meet § 25.853, Appendix F, parts IV and V, if they are installed in cabins of airplanes that otherwise are not required to meet these standards. Because the heat release and smoke testing requirements of § 25.853 per Appendix F, parts IV and V, are not part of the type certification basis of the Model 767, these special conditions are only applicable if the Model 767 series airplanes are in 14 CFR part 121 operations. Section 121.312 requires compliance with the heat release and smoke testing requirements of § 25.853, for certain airplanes, irrespective of the type certification bases of those airplanes. For Model 767 series airplanes, these are the airplanes that would be affected by these special conditions. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Proposed Special Conditions Accordingly, the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for Boeing Model 767 series airplanes. 1. Except as provided in paragraph 3 of these special conditions, compliance with Title 14 CFR part 25, Appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may either be a single component or multiple components in a concentrated area in their design. 2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with special condition Number 1, above. A triple seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard seat place 1 square foot, middle 1 square foot, and inboard 2.5 square feet). 3. Seats do not have to meet the test requirements of Title 14 CFR part 25, Appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include: a. Airplanes with passenger capacities of 19 or less, b. Airplanes that do not have § 25.853, Amendment 25-61 or later, in their certification basis and do not need to comply with the requirements of 14 CFR 121.312, and c. Airplanes exempted from § 25.853, Amendment 25-61 or later. 4. Only airplanes associated with new seat certification programs approved after the effective date of these special conditions will be affected by the requirements in these special conditions. Previously certificated interiors on the existing airplane fleet and follow-on deliveries of airplanes with previously certificated interiors are not affected. Issued in Renton, Washington, on October 19, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-21240 Filed 10-26-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. 384; Notice No. 25-07-16-SC] Special Conditions: Boeing Model 787 Series Airplanes; Seats With Non-Traditional, Large, Non-Metallic Panels AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This action proposes special conditions for Boeing Model 787 series airplanes. These airplanes will have a novel or unusual design feature(s) associated with seats that include non-traditional, large, non-metallic panels that would affect survivability during a post-crash fire event. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: We must receive your comments by November 28, 2007. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. 384, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. 384. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Alan Sinclair, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2195; facsimile
(425)227-1232; electronic mail *alan.sinclair@faa.gov.* SUPPLEMENTARY INFORMATION: Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Proposed Change to Special Condition Number 4 The FAA previously notified the public of our intent to issue special conditions for seats with non-traditional, large, non-metallic panels on various airplane makes and models. Notice of Proposed Special Conditions No. 25-06-13-SC, applicable to Boeing Model 737 series airplanes, was published in the **Federal Register** on November 9, 2006 (71 FR 65761). The special conditions were issued on June 29, 2007 (Docket No. NM 359, Special Conditions No. 25-358-SC), published in the **Federal Register** on July 10, 2007 (72 FR 37425), and became effective on August 9, 2007. Both the Notice and the Final Special Conditions contained these words: We anticipate that seats with non-traditional, large, non-metallic panels will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of seats with non-traditional, large, non-metallic panels until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of airplane makes and models will ensure a level playing field for the aviation industry. Special condition number 4 in the 737 special conditions limits the applicability of the special conditions to new seat certification programs applied for after the effective date of the special conditions. In these proposed special conditions the FAA proposes to change the applicability to make the special conditions applicable to new seat certification programs that are approved after the effective date of the special conditions. This change could affect pending as well as future project applications. The rationale behind this proposed change is that these seat installations affect survivability during a post-crash fire event and should be implemented as soon as possible. Additionally, the public has been previously notified of the FAA's intent to issue similar special conditions on other airplane makes and models. Background On August 8, 2005, Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124, applied for a type certificate for a new Boeing Model 787 airplane. The Boeing Model 787 series airplanes will be all new, twin-engine, jet transport airplanes with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. The applicable regulations to airplanes currently approved under part 25 do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat release and smoke emission requirements. Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14 Code of Federal Regulations (CFR), part 25, Appendix F, parts IV and V, heat release and smoke emission requirements. Type Certification Basis Under provisions of 14 CFR 21.17, Boeing must show that Model 787-8 airplanes (hereafter referred to as “the Model 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the Model 787 airplane because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the Model 787 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.” Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The Boeing Model 787 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of the cabin in the case of fire. These seats are considered a novel design for transport category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established. The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels in their designs. In order to provide a level of safety that is equivalent to that afforded to the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels. Definition of “Non-Traditional, Large, Non-Metallic Panel” A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: Seat backs, bottoms and leg/foot rests, kick panels, back shells, credenzas and associated furniture. Examples of traditional exempted parts of the seat include: Arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds. Clarification of “Exposed” “Exposed” is considered to include panels that are directly exposed to the passenger cabin in the traditional sense, and panels that are enveloped, such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials must still comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments. Discussion In the early 1980s the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large surface area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853 entitled “Compartment interiors” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply. At the time these standards were written the potential application of the requirements of heat release and smoke emission to seats was explored. The seat frame itself was not a concern because it was primarily made of aluminum and there were only small amounts of non-metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat release and smoke requirements. The requirements therefore did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985) and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.” Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.” In the late 1990s, the FAA issued Policy Memorandum 97-112-39, *Guidance for Flammability Testing of Seat/Console Installations,* October 17, 1997 ( *http://rgl.faa.gov* ). That memo was issued when it became clear that seat designs were evolving to include large, non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large surface area panels must comply with heat release and smoke emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event. In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat release and smoke emissions requirements. We have determined that special conditions would be promulgated to apply the standards defined in 14 CFR 25.853(d) to seats with large, non-metallic panels in their design. Applicability As discussed above, these special conditions are applicable to Boeing Model 787 series airplanes. Because the heat release and smoke testing requirements of § 25.853 are part of the type certification basis for the Model 787, these special conditions are applicable to all Model 787 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Proposed Special Conditions Accordingly, the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for Boeing Model 787 series airplanes. 1. Except as provided in paragraph 3 of these special conditions, compliance with Title 14 CFR part 25, Appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may either be a single component or multiple components in a concentrated area in their design. 2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with special condition Number 1, above. A triple seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard seat place 1 square foot, middle 1 square foot, and inboard 2.5 square feet). 3. Seats do not have to meet the test requirements of Title 14 CFR part 25, Appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include: a. Airplanes with passenger capacities of 19 or less, b. Airplanes that do not have § 25.853, Amendment 25-61 or later, in their certification basis and do not need to comply with the requirements of 14 CFR 121.312, and c. Airplanes exempted from § 25.853, Amendment 25-61 or later. 4. Only airplanes associated with new seat certification programs approved after the effective date of these special conditions will be affected by the requirements in these special conditions. Previously certificated interiors on the existing airplane fleet and follow-on deliveries of airplanes with previously certificated interiors are not affected. Issued in Renton, Washington, on October 19, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-21243 Filed 10-26-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM383; Notice No. 25-07-15-SC] Special Conditions: Boeing Model 777 Series Airplanes; Seats With Non-Traditional, Large, Non-Metallic Panels AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This action proposes special conditions for Boeing Model 777 series airplanes. These airplanes will have a novel or unusual design feature(s) associated with seats that include non-traditional, large, non-metallic panels that would affect survivability during a post-crash fire event. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: We must receive your comments by November 28, 2007. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attn: Rules Docket (ANM-113), Docket No. NM383, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM383. You can inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Alan Sinclair, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2195; facsimile
(425)227-1232; electronic mail *alan.sinclair@faa.gov.* SUPPLEMENTARY INFORMATION: Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Proposed Change to Special Condition Number 4 The FAA previously notified the public of our intent to issue special conditions for seats with non-traditional, large, non-metallic panels on various airplane makes and models. Notice of Proposed Special Conditions No. 25-06-13-SC, applicable to Boeing Model 737 series airplanes, was published in the **Federal Register** on November 9, 2006 (71 FR 65761). The special conditions were issued on June 29, 2007 (Docket No. NM 359, Special Conditions No. 25-358-SC), published in the **Federal Register** on July 10, 2007 (72 FR 37425), and became effective on August 9, 2007. Both the Notice and the Final Special Conditions contained these words: We anticipate that seats with non-traditional, large, non-metallic panels will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of seats with non-traditional, large, non-metallic panels until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of airplane makes and models will ensure a level playing field for the aviation industry. Special condition number 4 in the 737 special conditions limits the applicability of the special conditions to new seat certification programs applied for after the effective date of the special conditions. In these proposed special conditions the FAA proposes to change the applicability to make the special conditions applicable to new seat certification programs that are approved after the effective date of the special conditions. This change could affect pending as well as future project applications. The rationale behind this proposed change is that these seat installations affect survivability during a post-crash fire event and should be implemented as soon as possible. Additionally, the public has been previously notified of the FAA's intent to issue similar special conditions on other airplane makes and models. Background On August 8, 2005, Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124, applied for a design change to Type Certificate No. T00001SE for installation of seats that include non-traditional, large, non-metallic panels in Boeing Model 777 series airplanes. The Boeing Model 777 series airplanes, currently approved under Type Certificate No. T00001SE, are swept-wing, conventional tail, twin-engine, turbofan-powered, dual aisle, large-sized transport category airplanes. The applicable regulations to airplanes currently approved under Type Certificate No. T00001SE do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat release and smoke emission requirements. Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14 Code of Federal Regulations (CFR), part 25, Appendix F, parts IV and V, heat release and smoke emission requirements. Type Certification Basis Under the provisions of 14 CFR 21.101, Boeing must show that the Model 777 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE are as follows: • *For Model 777-200 airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-82. • *For Model 777-200LR airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-100 with the exceptions listed: §§ 25.831(a) and 25.831(g) at Amendment 25-86; § 25.841(a) at Amendment 25-86; and § 25.853(d)(3) at Amendment 25-82. • *For Model 777-300 airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-86 with the exception listed: § 25.853(d)(3), Compartment interiors, at Amendment 25-82. • *For Model 777-300ER airplanes* —Title 14 CFR part 25, as amended by Amendment 25-1 through Amendment 25-98 with the exception listed: § 25.853(d)(3), Compartment interiors, at Amendment 25-82. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The Boeing Model 777 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of the cabin in the case of fire. These seats are considered a novel design for transport category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established. The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels in their designs. In order to provide a level of safety that is equivalent to that afforded to the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels. Definition of “Non-Traditional, Large, Non-Metallic Panel” A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: Seat backs, bottoms and leg/foot rests, kick panels, back shells, credenzas and associated furniture. Examples of traditional exempted parts of the seat include: Arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds. Clarification of “Exposed” “Exposed” is considered to include panels that are directly exposed to the passenger cabin in the traditional sense, and panels that are enveloped, such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials must still comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments. Discussion In the early 1980s the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large surface area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853 entitled “Compartment interiors” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply. At the time these standards were written the potential application of the requirements of heat release and smoke emission to seats was explored. The seat frame itself was not a concern because it was primarily made of aluminum and there were only small amounts of non-metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat release and smoke requirements. The requirements therefore did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985) and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.” Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.” In the late 1990s, the FAA issued Policy Memorandum 97-112-39, *Guidance for Flammability Testing of Seat/Console Installations,* October 17, 1997 ( *http://rgl.faa.gov* ). That memo was issued when it became clear that seat designs were evolving to include large, non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large surface area panels must comply with heat release and smoke emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event. In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat release and smoke emissions requirements. We have determined that special conditions would be promulgated to apply the standards defined in 14 CFR 25.853(d) to seats with large, non-metallic panels in their design. Applicability As discussed above, these special conditions are applicable to Boeing Model 777 series airplanes. Because the heat release and smoke testing requirements of § 25.853 are part of the type certification basis for the Model 777, these special conditions are applicable to all new seat certification programs for Model 777 series airplanes. The existing (i.e., with unchanged interiors) Model 777 fleet and follow-on deliveries of Model 777 series airplanes with previously certificated interiors are not affected. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Proposed Special Conditions Accordingly, the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for Boeing Model 777 series airplanes. 1. Except as provided in paragraph 3 of these special conditions, compliance with Title 14 CFR part 25, Appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may either be a single component or multiple components in a concentrated area in their design. 2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with special condition Number 1, above. A triple seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard seat place 1 square foot, middle 1 square foot, and inboard 2.5 square feet). 3. Seats do not have to meet the test requirements of Title 14 CFR part 25, Appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include: a. Airplanes with passenger capacities of 19 or less, b. Airplanes that do not have § 25.853, Amendment 25-61 or later, in their certification basis and do not need to comply with the requirements of 14 CFR 121.312, and c. Airplanes exempted from § 25.853, Amendment 25-61 or later. 4. Only airplanes associated with new seat certification programs approved after the effective date of these special conditions will be affected by the requirements in these special conditions. Previously certificated interiors on the existing airplane fleet and follow-on deliveries of airplanes with previously certificated interiors are not affected. Issued in Renton, Washington, on October 19, 2007. Ali Bahrami Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-21248 Filed 10-26-07; 8:45 am] BILLING CODE 4910-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-0500-200721; FRL-8488-2] Approval and Promulgation of Implementation Plans Kentucky: Approval of Revisions to the State Implementation Plan AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a request submitted on May 25, 2007, by the Commonwealth of Kentucky (Kentucky), through the Kentucky Division for Air Quality (KDAQ), to remove the “Potentially hazardous matter or toxic substances” rule from the EPA-approved Kentucky State Implementation Plan (SIP). KDAQ requested that EPA remove this rule from the Kentucky SIP, because the rule is not related to the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS). EPA is proposing to approve this request and correct the Kentucky SIP by removing this rule from the SIP pursuant to section 110(k)(6) of the Clean Air Act (CAA). DATES: Written comments must be received on or before November 28, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2007-0500, by one of the following methods: 1. *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. 2. *E-mail: lakeman.sean@epa.gov* . 3. *Fax:*
(404)562-9019. 4. *Mail:* “EPA-R04-OAR-2007-0500,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. *Instructions:* Direct your comments to Docket ID No. “EPA-R04-OAR-2007-0500.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9043. Mr. Lakeman can also be reached via electronic mail at *lakeman.sean@epa.gov* . SUPPLEMENTARY INFORMATION: The CAA requires EPA to set NAAQS for commonly occurring air pollutants that pose public health and welfare threats. These pollutants are known as criteria pollutants. Currently, NAAQS exist for six criteria pollutants—ozone (ground level), particulate matter, carbon monoxide, sulfur dioxide, lead and nitrogen dioxide. On July 12, 1982 (47 FR 30059), EPA erroneously approved Kentucky's “Potentially hazardous matter or toxic substances” rule (401 KAR 63:020) into the SIP. This rule is not related to the attainment and maintenance of the NAAQS. Pursuant to section 110 of the CAA, provisions approved by EPA as part of States' SIPs should generally be related to attainment and maintenance of these NAAQS. The Kentucky “Potentially hazardous matter or toxic substances” rule applies to antimony, arsenic, bismuth, lead, silica, tin and compounds of such materials. EPA is, therefore, proposing to correct this error by removing the provision from the approved SIP under the authority of section 110(k)(6) of the CAA. Section 110(k)(6) provides: “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.” Proposed Action Since Kentucky's “Potentially hazardous matter or toxic substances” rule (401 KAR 63:020) is not directed at the attainment and maintenance of the NAAQS, EPA has found that its prior approval of this particular rule into the Kentucky SIP was in error. Consequently, in order to correct this error, EPA is proposing to remove Kentucky rule 401 KAR 63:020 from the approved Kentucky SIP pursuant to section 110(k)(6) of the CAA. EPA will codify this deletion by revising the appropriate paragraph under 40 CFR part 52, subpart S, section 52.920 (Identification of Plan). Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to remove an erroneously approved State rule from the SIP and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to remove an erroneously approved State rule from the SIP and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to remove an erroneously approved State rule from the SIP, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: October 19, 2007. Russell L. Wright, Jr., Acting Regional Administrator, Region 4. [FR Doc. E7-21245 Filed 10-26-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 070717354-7361-01] RIN 0648-AV73 Endangered and Threatened Species; Designation of Critical Habitat for the North Pacific Right Whale AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comment. SUMMARY: We, NMFS, completed a status review of the northern right whale and have determined that the right whale in the North Pacific Ocean is a separate and distinct species from the right whales in the North Atlantic Ocean and southern hemisphere. We also find the species to be described in the North Pacific Ocean, the North Pacific right whale ( *Eubalaena japonica* ), is in danger of extinction throughout its range. We have proposed to list this species as endangered pursuant to the Endangered Species Act of 1973 (ESA). Here we propose to designate critical habitat for this species. Two specific areas are proposed for designation: one in the Gulf of Alaska
(GOA)and another in the Bering Sea. Our most recent mapping calculation indicates this area comprises a total of approximately 36,800 square miles (95,325 square kilometers) of marine habitat. We solicited comments from the public on all aspects of the proposal, including information on the economic, national security, and other relevant impacts of the proposed designation. We may revise this proposal and solicit additional comments prior to final designation to address new information received during the comment period. DATES: Comments on this proposed rule must be received by close of business on December 28, 2007. Requests for public hearings must be made in writing by December 13, 2007. ADDRESSES: You may submit comments, identified by 0648-AV73, by any one of the following methods: • Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions at that site for submitting comments. • Mail: Kaja Brix, Assistant Regional Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: Ellen Sebastian, P. O Box 21668, Juneau, AK 99802 • Hand delivery to the Federal Building : 709 W. 9th Street, Juneau, Alaska . • Fax:
(907)586-7012, Attn: Ellen Sebastian. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. The proposed rule, maps, stock assessments, and other materials relating to this proposal can be found on the NMFS Alaska Region website *http://www.fakr.noaa.gov/* . FOR FURTHER INFORMATION CONTACT: Brad Smith,
(907)271-3023, or Marta Nammack,
(301)713-1401. SUPPLEMENTARY INFORMATION: The ESA, as amended [16 U.S.C. 1531 *et seq.* ], grants authority to and imposes requirements upon Federal agencies regarding endangered or threatened species of fish, wildlife, or plants, and habitats of such species that have been designated as critical. The U.S. Fish and Wildlife Service and NMFS share responsibility for administering the ESA. Endangered or threatened species under the authority of NMFS are found in 50 CFR parts 223 and 224. Background The North Pacific right whale (E. japonica) is a member of the family Balaenidae and is closely related to the right whales that inhabit the North Atlantic and the Southern Hemisphere. Right whales are large baleen whales that grow to lengths and weights exceeding 18 meters and 100 tons, respectively. They are filter feeders whose prey consists exclusively of zooplankton (notably copepods and euphausiids; see below). Right whales attain sexual maturity at an average age of 8-10 years, and females produce a single calf at intervals of 3-5 years (Kraus *et al.* , 2001). Their life expectancy is unclear, but is known to reach 70 years in some cases (Hamilton *et al.* , 1998; Kenney, 2002). Right whales are generally migratory, with at least a portion of the population moving between summer feeding grounds in temperate or high latitudes and winter calving areas in warmer waters (Kraus *et al.* , 1986; Clapham *et al.* , 2004). In the North Pacific, the feeding range is known to include the GOA, the Aleutian Islands, the Bering Sea, and the Sea of Okhotsk. Although a general northward movement is evident in spring and summer, it is unclear whether the entire population undertakes a predictable seasonal migration, and the location of calving grounds remains completely unknown (Scarff, 1986; Scarff, 1991; Brownell *et al.* , 2001; Clapham *et al.* , 2004; Shelden et al,. 2005). Further details of occurrence and distribution are provided below. In the North Pacific, whaling for right whales began in the GOA (known to whalers as the “Northwest Ground”) in 1835 (Webb, 1988). Right whales were extensively hunted in the western North Pacific in the latter half of the 19th century, and by 1900 were scarce throughout their range. Right whales were protected worldwide in 1935 through a League of Nations agreement. However, because neither Japan nor the USSR signed this agreement, both nations were theoretically free to continue right whaling until 1949, when the newly-created International Whaling Commission
(IWC)endorsed this ban. Following this, a total of 23 North Pacific right whales were legally killed by Japan and the USSR under Article VIII of the International Convention for the Regulation of Whaling (1946), which permits the taking of whales for scientific research purposes. However, it is now known that the USSR illegally caught many right whales in the North Pacific (Doroshenko, 2000; Brownell *et al.* , 2001; Ivashchenko, 2007). In the eastern North Pacific, 372 right whales were killed by the Soviets between 1963 and 1967; of these, 251 were taken in the GOA south of Kodiak, and 121 in the Southeastern Bering Sea (SEBS). These takes devastated a population that, while undoubtedly small, may have been undergoing a slow recovery (Brownell *et al.* , 2001). As a result of this historic and recent hunting, the North Pacific right whale today is among the most endangered of all whales worldwide. Right whales were listed in 1970 following passage of the Endangered Species Conservation Act
(ESCA)of 1969, and automatically granted endangered status when the ESCA was repealed and replaced by the ESA. Right whales were also protected in U.S. waters under the Marine Mammal Protection Act of 1972. NMFS issued a Recovery Plan for the northern right whale in 1991 which covered both the North Atlantic and North Pacific (NMFS, 1991). We have assumed the existence of a single species of right whales in the North Pacific (Hill *et al.* ,1997). However, some authors (e.g., Klumov, 1962; Brownell *et al.* , 2001) have discussed the possibility that North Pacific right whales exist in discrete eastern and western North Pacific populations. In particular, Brownell *et al.*
(2001)pointed to the different catch and recovery histories of the eastern and western management units as support for such a division. During the 1983 IWC right whale workshop (IWC, 1986), the Scientific Committee recommended distinguishing two North Pacific management units, but stated no conclusion can be reached concerning the identity of biological populations. At this writing, sub-division of this species remains equivocal, and we consider all North Pacific right whales to belong to the single species, *E. japonica* . In the western North Pacific (the Sea of Okhotsk and adjacent areas), current abundance is unknown but is probably in the low to mid-hundreds (Brownell *et al.* , 2001). There is no estimate of abundance for the eastern North Pacific (Bering Sea, Aleutian Islands, and GOA), but sightings are rare; most biologists believe the current population is unlikely to exceed a hundred individuals, and is probably much smaller. Prior to the illegal Soviet catches of the 1960s, an average of 25 whales was observed each year in the eastern North Pacific (Brownell *et al.* , 2001); in contrast, the total number of records in the 35 years from 1965 to 1999 was only 82, or 2.3 whales per annum. Since 1996, NMFS and other surveys (directed specifically at right whales or otherwise) have detected small numbers of right whales in the SEBS, including an aggregation estimated at 24 animals in the summer of 2004. Photo-identification and genetic data have identified 35 individuals from the Bering Sea, and the high inter-annual resighting rate further reinforces the idea that this population is small. Right whales have also been sighted in the northern GOA, including a sighting in August 2005 and September 2006, both of which occurred in the same area south of Kodiak Island. However, the overall number of North Pacific right whales using habitats other than the Bering Sea is not known. The taxonomic status of right whales worldwide has recently been revised in light of genetic analysis (see Rosenbaum *et al.* , 2000; Gaines *et al.* , 2005). Applying a phylogenetic species concept to molecular data separates right whales into three distinct species: *Eubalaena glacialis* (North Atlantic), *E. japonica* (North Pacific) and *E. australis* (Southern Hemisphere). We formally recognized this distinction for the purpose of management in a final rule published on April 10, 2003 (68 FR 17560), but subsequently determined that the issuance of this rule did not comply with the requirements of the ESA, and thus rescinded it (70 FR 1830, January 11, 2005) prior to beginning the process anew. We published a proposed rule on December 27, 2006 (71 FR 77694), to list the North Pacific right whale, *E. japonica* , separately as an endangered species. Critical Habitat Section 3 of the ESA defines critical habitat
(CH)as “the specific areas within the geographical area occupied by the species, at the time it is listed, * * * on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species at the time it is listed that are determined by the Secretary to be essential for the conservation of the species.” Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the terms “conserve,” “conserving,” and “conservation” to mean “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Section 4 of the ESA requires that before designating CH, the Secretary consider economic impacts, impacts on national security, and other relevant impacts of specifying any particular area as CH. The Secretary may exclude any area from CH if the benefits of exclusion outweigh the benefits of inclusion, unless excluding an area from CH will result in the extinction of the species concerned. Once CH is designated, section 7(a)(2) of the ESA requires that each Federal agency shall, in consultation with and with the assistance of NMFS, ensure that any action authorized, funded, or carried out by such agency is not likely to result in the destruction or adverse modification of CH. CH for the Northern Right Whale On July 6, 2006, we published a Final Rule (71 FR 38277) to revise the CH for the northern right whale by designating areas within the North Pacific Ocean as CH under the ESA. Two specific areas were designated, one in the GOA and another in the Bering Sea. These are the same areas being proposed here for the North Pacific right whale. In our 2006 Final Rule (71 FR 38277; July 6, 2006) we stated the critical habitat comprised approximately 36,750 square miles (95,200 sq km) of marine habitat. However, our most recent mapping calculation indicates that the area is approximately 95,325 square miles (36,800 square miles) of marine habitat. A description of, and the basis for, the proposed designation follow. Geographical Area Occupied by the Species The ESA defines CH (in part) as areas within the geographical area occupied by the species at the time it was listed under the ESA. Because this geographical area has not been previously described for the North Pacific right whale, it is necessary to establish this range when proposing to designate CH. Prior to the onset of commercial whaling in 1835, right whales were widely distributed across the North Pacific (Scarff, 1986; Clapham *et al.* , 2004; Shelden *et al.* , 2005). By 1973, the North Pacific right whale had been severely reduced by commercial whaling. Sighting data from this remnant population are too sparse to identify the range of these animals in 1973. However, no reason exists to suspect that the right whales that remain alive today inhabit a substantially different range than right whales alive during the time of the Soviet catches; indeed, given the longevity of this species, it is likely that some of the individuals who survived that whaling episode remain extant now. Consequently, recent habitat use is unlikely to be different from that at or before the time of listing. Both the SEBS and the western GOA (shelf and slope waters south of Kodiak) have been the focus of many sightings (as well as the illegal Soviet catches) in recent decades. In general, the majority of North Pacific right whale sightings (historically and in recent times) have occurred from about 40° N to 60° N latitude (lat.). There are historical records from north of 60° N lat., but these are rare and are likely to have been misidentified bowhead whales. North Pacific right whales have on rare occasions been recorded off California and Mexico, as well as off Hawaii. However, as noted by Brownell *et al.* (2001), there is no evidence that either Hawaii or the west coast of North America from Washington State to Baja California were ever important habitats for right whales. Given the amount of whaling effort as well as the human population density in these regions, it is highly unlikely that substantial concentrations of right whales would have passed unnoticed. Furthermore, no archaeological evidence exists from the U.S. west coast suggesting that right whales were the target of local native hunts. Consequently, the few records from this region are considered to represent vagrants. The geographical area occupied by the North Pacific right whale at the time of ESA listing extends over a broad area of the North Pacific Ocean, between 120° E and 123° W longitude and 40° N and 60° N latitude, as depicted in Figure 1. BILLING CODE 3510-22-S ER29OC07.000 BILLING CODE 3510-22-C Unoccupied Areas ESA section 3(5)(A)(ii) further defines CH to include “specific areas outside the geographical area occupied” if the areas are determined by the Secretary to be “essential for the conservation of the species.” 50 CFR 424.12(e) specifies that NMFS “shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” We are not proposing to designate any areas not occupied at the time of listing because any such areas are presently unknown (if they exist), and the value of any such habitat in conserving this species cannot be determined. Future revisions to the CH of the North Pacific right whale may consider new information which might lead to designation of areas outside the occupied area of these whales. Physical or Biological Features Essential to the Conservation of the Species In determining what areas are CH, 50 CFR 424.12(b) requires that we “consider those physical or biological features that are essential to the conservation of a given species including space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.” The regulations further direct us to “focus on the principal biological or physical constituent elements . . . that are essential to the conservation of the species,” and specify that the “known primary constituent elements shall be listed with the critical habitat description.” The regulations identify primary constituent elements
(PCE)as including, but not limited to: “roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.” An area must contain one or more PCEs to be eligible for designation as CH; an area lacking a PCE may not be designated in the hope it will acquire one or more PCEs in the future. NMFS scientists considered PCEs for right whales in the North Pacific during a workshop held during July 2005. Unfortunately, many data gaps exist in our knowledge of the ecology and biology of these whales, and very little is known about the PCEs that might be necessary for their conservation. The life-requisites for such factors as temperatures, depths, substrates, are unknown, or may be highly variable. One certainty is the metabolic necessity of prey species to support feeding by right whales. Examination of harvested whales in the North Pacific and limited plankton tows near feeding right whales in recent years show these whales feed on several species of zooplankton. We have determined these are described by several species of large copepods and other zooplankton which constitute the primary prey of the North Pacific right whale. The PCEs for the North Pacific right whale are species of large zooplankton in areas where right whale are known or believed to feed. In particular, these are: the copepods *Calanus marshallae* , *Neocalanus cristatus* , and *N. plumchrus* . and a euphausiid, *Thysanoessa raschii* , whose very large size, high lipid content, and occurrence in the region likely makes it a preferred prey item for right whales (J. Napp, pers. comm.). A description of the proposed CH (below) establishes the presence of these PCEs within those areas. In addition to the physical presence of these PCEs within the proposed CH, it is likely that certain physical forcing mechanisms are present which act to concentrate these prey in densities which allow for efficient foraging by right whales. There may in fact be critical or triggering densities below which right whale feeding does not occur. Such densities are not presently described for the right whales in the North Pacific, but have been documented in the Atlantic. Accordingly, the proposed CH encompasses areas in which the physical and biological oceanography combines to promote high productivity and aggregation of large copepods into patches of sufficient density for right whales. The PCEs, essential for the conservation of the North Pacific right whale, and these physical forcing or concentrating mechanisms, contribute to the habitat value of the areas proposed for designation. Special Management Considerations or Protection An occupied area may be designated as CH if it contains physical and biological features that “may require special management considerations or protection.” 50 CFR 424.02(j) defines “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” We considered whether the copepods and other zooplankton which have been identified as the PCEs for the North Pacific right whale may require special management considerations or protection. The proposed CH areas support extensive and multi-species commercial fisheries for pollock, flatfish, cod, various crabs, and other resources (but not salmon, as salmon fisheries in Alaska are restricted to State waters, except in the case of trolling which is permitted in Federal waters but only immediately adjacent to the Southeast Alaska coastline; these areas are not included in the proposed CH areas). We believe the identified PCEs would not be harmed by these Federally managed fisheries. However, plankton communities and species are vulnerable to physical and chemical alterations within the water column due to both natural processes, such as global climate change or the Pacific Decadal Oscillation, as well as pollution from various potential sources, including oil spills, discharges from oil and gas drilling and production, and fish processing waste discharges. Because of the vulnerabilities to pollution sources, these PCEs may require special management or protection through such measures as conditioning Federal permits or authorizations through special operational restraints, mitigative measures, or technological changes. The 2005 wreck of the M/V *Selendang Ayu* near Unalaska caused the release of approximately 321,000 gallons (1,215,117 litres) of fuel oil and 15,000 gallons (56,781 litres) of diesel into the Bering Sea. That incident has precipitated recommendations for regulations which would improve navigational safety in the area for the protection of the marine environment. While such protections are not targeted towards copepods or zooplankton *per se* , they would act to conserve these PCEs. We request comment on the extent to which the designated PCEs may require special management considerations or protection. The contributions of these management measures are also relevant to the exclusion analysis under section 4(b)(2) of the ESA, and will be considered further in a later section of this notice. Proposed Critical Habitat The current abundance of North Pacific right whales is considered to be very low in relation to historical numbers or their carrying capacity (not determined). The existence of a persistent concentration of right whales found within the SEBS since 1996 is somewhat extraordinary in that it may represent a significant portion of the remaining population. These areas of concentration where right whales feed are characterized by certain physical and biological features which include nutrients, physical oceanographic processes, certain species of zooplankton, and long photoperiod due to the high latitude. We consider these feeding areas, supporting a significant assemblage of the remaining North Pacific right whales, to be critical in terms of their conservation value. We have based our proposed designation of CH on these areas, rather than where right whales have appeared singly, in low numbers, or in transit. We have been able to substantiate this assumption with observations of feeding behavior, direct sampling of plankton near feeding right whales, or records of stomach contents of dead whales. These assumptions underlie the proposed CH areas shown in Figure 2 and described below. Two areas are proposed: an area of the SEBS and an area south of Kodiak Island in the GOA. Shelden *et al.*
(2005)reviewed prey and habitat characteristics of North Pacific right whales. They noted that habitat selection is often associated with features that influence abundance and availability of a predator's prey. Right whales in the North Pacific are known to prey upon a variety of zooplankton species. Availability of these zooplankton greatly influences the distribution of right whales on their feeding grounds in the SEBS and GOA. Right whales require zooplankton patches of very high density, and zooplankton are typically small and distributed over space and time (Mayo and Marx, 1990). Typical zooplankton sampling is too broad-scale in nature to detect patches of these densities, and directed studies employing fine-scale sampling cued by the presence of feeding right whales are the only means of doing this (Mayo and Marx, 1990). Accordingly, there may be no obvious correlation between the abundance and distribution of prey copepods and euphausiids (as measured by broad-scale oceanographic sampling) and the distribution of right whales (M. Baumgartner, in prep.) In light of this, we must rely upon the whales themselves to indicate the location of important feeding areas in the North Pacific. Aggregations of right whales in high latitudes can be used with high confidence as an indicator of the presence of suitable concentrations of prey, and thus of feeding behavior by the whales. Right whales feed daily during spring and summer, and studies in the North Atlantic have consistently found an association between concentrations of whales and feeding behavior, with dense copepod patches recorded by oceanographic sampling around such groups of whales (Mayo and Marx, 1990; Baumgartner *et al.* , 2003a, 2003b). In the North Atlantic, an analysis of sighting data by NMFS indicated that a density of four or more right whales per 100 nm2 was a reliable indicator of a persistent feeding aggregation (Clapham and Pace, 2001), and this had been used for Dynamic Area Management fisheries closures to reduce the risk of right whales becoming entangled in fishing gear. While this metric is a reliable indicator of the presence of feeding aggregations in the North Atlantic, it is not necessarily the only metric suitable for application in the North Pacific; the much smaller population of right whales in the eastern North Pacific Ocean typically results in sightings of single animals or pairs. Unlike with larger groups, such small numbers sometimes indicate transient passage through an area and thus cannot be unequivocally linked with feeding behavior. However, while sporadic sightings of right whales in such small numbers generally would not be considered a reliable indication of a feeding area, consistent sightings of right whales - even of single individuals and pairs - in a specific area in spring and summer over a long period of time is sufficient indication that the area is a feeding area containing suitable concentrations of copepods. Therefore, in the absence of data which describe the densities, as well as presence, of the PCEs themselves, the distribution of right whales is used here as a proxy for the existence of suitably dense copepod and euphausiid patches and thus to identify the areas proposed herein for designation as CH. Figure 2 depicts the proposed critical habitats and the best available sightings data. BILLING CODE 3510-22-S ER29OC07.001 Gulf of Alaska We propose to designate CH in the GOA (Figure 3), to be described as an area delineated by a series of straight lines connecting the following coordinates in the order listed: 57°03' N/153°00' W, 57°18' N/151°30' W, 57°00' N/151° 30' W, 56°45' N/153°00' W, and returning to 57°03' N/153°00' W. The area described by these boundaries lies completely within the waters of the United States and its Exclusive Economic Zone
(EEZ)and outside of waters of the State of Alaska. State waters extend seaward for 3 nautical miles from the shoreline; very few sightings occurred within state waters. The best available sightings data on right whales in this area totaled 5 out of 14 encounters in the GOA. ER29OC07.002 Southeastern Bering Sea We propose to designate CH in the Bering Sea (Figure 4); to be described as an area described by a series of straight lines connecting the following coordinates in the order listed: 58°00′ N/168°00′ W, 58°00'N/163°00′ W, 56°30′ N/161°45′ W, 55°00' N/166°00′ W, 56°00′ N/168°00' W and returning to 58°00′ N/168°00' W. The area described by these boundaries lies completely within the waters of the United States and its EEZ and outside of waters of the State of Alaska. State waters extend seaward for 3 nautical miles from the shoreline. Because very few sightings occurred within 3 nautical miles of shore, State waters are not included in the proposed CH. The best available information on right whale encounters occurring totaled 182 within this area, out of 184 encounters north of the Aleutian Islands. ER29OC07.003 BILLING CODE 3510-22-C Physical Processes and the Existence of PCEs Within the Proposed Critical Habitat Southeastern Bering Sea Slope Waters The Bering Sea slope is a very productive zone, sometimes referred to as the 'Greenbelt', where annual primary production can exceed that on the adjacent shelf and basin by 60 percent and 270 percent, respectively (Springer *et al.* , 1996). Physical processes at the shelf edge, such as intensive tidal mixing, eddies, and up-canyon flow bring nutrients to the surface, thereby supporting enhanced productivity and elevated biomass of phytoplankton, zooplankton, and fish. Western North Pacific right whales have been observed in association with oceanic frontal zones that produce eddies southeast of Hokkaido Island, Japan, and southeast of Cape Patience (Mys Terpeniya), Sakhalin Island, in the Okhotsk Sea (Omura *et al.* , 1969). Whether the Bering Slope Current, or eddies shed from it, support production or entrain right whale prey is unknown. From August to October in 1955 and 1956, Soviet scientists observed aggregations of *Calanus* spp. between the Pribilof Islands and the Aleutian Islands (around 170° W long.) that were identified as *C. finmarchicus* , though, as mentioned above, were probably *C. marshallae* (Klumov, 1963). Flint *et al.*
(2002)also report high concentrations of *C. marshallae* at frontal zones near the Pribilof Islands, with especially high biomass noted for the subthermohaline layer. This oceanographic front effectively separates slope and outer shelf *Neocalanus* spp. from the inshore middle shelf community of *C. marshallae* (Vidal and Smith, 1986). Right whales were found on both sides of this frontal zone (that coincides with the shelf break at 170 m) during both the 19 th and 20 th centuries. This is similar to the habitat described by Baumgartner *et al.* (2003a) for right whales feeding in the North Atlantic. Six right whales that were caught under scientific permit in late July-early August 1962-63 in Bering Sea slope waters had exclusively consumed *N. cristatus* ( *C. cristatus* : Omura *et al.* , 1969). Although oceanic species such as *Neocalanus* spp. usually enter diapause and migrate to depths greater than 200 m by late summer in the slope waters of the Bering Sea (Vidal and Smith, 1986), right whales may still be able to utilize these resources by targeting regions where the bottom mixed layer forces the zooplankton into shallower, discrete layers (e.g. Baumgartner *et al.* , 2003a). Southeastern Bering Sea Middle-Shelf Waters The SEBS shelf has been the focus of intense oceanographic study since the late 1970s (e.g. Schumacher *et al.* , 1979; Coachman, 1986; Napp *et al.* , 2000; Hunt *et al.* , 2002a; Hunt *et al.* , 2002b), largely due to the considerable commercial fishing effort in the area (National Research Council, 1996). Coachman
(1986)described the now well-established hydrographic domains of the inner-, middle- and outer-shelf, separated by a front or transition zone at roughly the 50 m (inner front) and 100 m (outer front) isobaths. During the 1990s, research focused on these domains demonstrated dynamic advection of nutrient-rich Bering slope water onto the shelf in both winter and summer, via eddies, meanders, and up-canyon flow (Schumacher and Stabeno, 1998; Stabeno and Hunt, 2002). These intrusions of nutrient-rich water, physical factors related to water column stratification, and long summer day length results in a very productive food web over the SEBS shelf (e.g. Livingston *et al.* ,1999; Napp *et al.* , 2002; Coyle and Pinchuk, 2002; Schumacher *et al.* , 2003). Specifically, copepod species upon which right whales feed (e.g., *C. marshallae* , *Pseudocalanus* spp., and *Neocalanus* spp.) are among the most abundant of the zooplankton sampled over the middle shelf (Cooney and Coyle, 1982; Smith and Vidal, 1986). Small, dense patches (to >500 mg/m- -3 ) of euphausiids ( *T. raschii* , *T. inermis* ), potential right whale prey, have also been reported for waters near the SEBS inner front (Coyle and Pinchuk, 2002). Zooplankton sampled near right whales seen in the SEBS in July 1997 included *C. marshallae* , *P. newmani* , and *Acartia longiremis* (Tynan, 1998). *C. marshallae* was the dominant copepod found in these samples as well as samples collected near right whales in the same region in 1999 (Tynan *et al.* , 2001). *C. marshallae* is the only “large” calanoid species found over the SEBS middle shelf (Cooney and Coyle, 1982; Smith and Vidal, 1986). Concentrations of copepods were significantly higher in 1994-98 than in 1980-81 by at least an order of magnitude (Napp *et al.* , 2002), and Tynan *et al.* ,
(2001)suggest that this increased production may explain the presence of right whales in middle shelf waters. However, at least three right whales were observed in 1985 in the same location as the middle shelf sightings reported in the late 1990s (Goddard and Rugh, 1998). Gulf of Alaska The central GOA is dominated by the Alaskan gyre, a cyclonic feature that is demarcated to the south by the eastward flowing North Pacific Current and to the north by the Alaska Stream and Alaska Coastal Current (ACC), which flow westward near the shelf break. The bottom topography of this region is rugged and includes seamounts, ridges, and submarine canyons along with the abyssal plain. Strong semi-diurnal tides and current flow generate numerous eddies and meanders (Okkonen *et al.* , 2001) that influence the distribution of zooplankton. Copepods are the dominant taxa of mesozooplankton found in the GOA and are patchily distributed across a wide variety of water depths. In northern GOA shelf waters, the late winter and spring zooplankton is dominated by calanoid copepods (Neocalanus spp.), with a production peak in May a cycle that appears resistant to environmental variability associated with El Nino Southern Oscillation
(ENSO)(Coyle and Pinchuk, 2003). In oceanic waters (50° N lat., 145° W long.), *N. plumchrus* dominate (Miller and Nielsen, 1988; Miller and Clemons, 1988) and have demonstrated dramatic shifts in the timing of annual peak biomass from early May to late July (Mackas *et al.* , 1998). From late summer through autumn, N. plumchrus migrate to deep water ranging from 200 m to 2000 m depending on location within the GOA (Mackas *et al.* , 1998). The three right whales caught under scientific permit on August 22, 1961, south of Kodiak Island had all consumed *N. plumchrus* ( *C. plumchrus* : Omura *et al.* , 1969), potentially by targeting areas where adult copepods remained above 200 m (e.g. Baumgartner *et al.* , 2003a). The area proposed as CH within the SEBS presents several similarities to that proposed within the GOA. Both areas are influenced by large eddies, submarine canyons, or frontal zones which enhance nutrient exchange and act to concentrate prey. These areas lie adjacent to major ocean currents (the ACC and the Aleutian ocean passes) and are characterized by relatively low circulation and water movement (P. Stabeno, pers. com.). Both proposed CH areas contain the designated PCEs and support feeding by North Pacific right whales. Right Whale Sightings as a Proxy for Locating the PCEs As noted above, consistent sightings of right whales - even of single individuals and pairs - in a specific area in spring and summer over an extended period of time can be used with high confidence as an indicator of the presence of the PCEs in a feeding area. We have used recent sighting records to make this determination because these records are a more reliable indicator of current distribution of feeding whales than historical sightings, especially given that most of the latter relate to animals that were removed from the population by whaling and are thus no longer extant. Of the 184 recent right whale sitings reported north of the Aleutian Islands, 182 occurred within the specific area proposed as critical habitat in the Bering Sea. Since 1996, right whales have been consistently sighted in this area over a period of years during the spring and summer feeding seasons. For example, NMFS surveys alone recorded between two and four sightings in 1996 (Goddard and Rugh, 1998), 13 sightings in 2000 (Le Duc *et al.* , 2004) and over 23 sightings in 2004. Single right whales as well as pairs and aggregations of up to five animals were sighted during this period, and all sightings were within 100 nm2 of one another. Based on consideration of these factors, we conclude that the right whale sightings in the specific area in the Bering Sea described in Figure 2 are a suitable proxy for the presence of the PCEs and therefore propose this area as critical habitat for the North Pacific right whale. Recent sightings of right whales are fewer in number in the GOA than in the Bering Sea. However, three individuals were sighted recently in the specific area proposed as critical habitat in the GOA. These sightings occurred at a time when right whales typically feed in the North Pacific Ocean. In July 1998, a single right whale exhibiting behavior consistent with feeding activity was observed among a group of about eight humpback whales (Waite *et al.* , 2003). In August 2004, a NMFS researcher observed a single right whale among a group of humpbacks. In August 2005, a NMFS researcher reported yet another sighting of a right whale within 250 to 500 meters of groups of humpback and fin whales. Acoustic monitoring of the area conducted in summer 2000 recorded what appeared to be right whale calls in the area on September 6 (Waite, Wynne and Mellinger, 2003). Compared to the Bering Sea sightings, the GOA right whale sightings do not provide as strong an indication of feeding right whales. However, individual right whales have been directly observed in 1998, 2004, and 2005 and detected acoustically in 2000 during the spring and summer feeding seasons in the specific area in the GOA described in Figure 2. It is also instructive that one of these animals was exhibiting feeding behavior at the time it was observed. Based on consideration of these factors, we propose that the right whale sightings in the specific area in the GOA described in Figure 2 are a reasonably reliable proxy for the presence of the PCEs and therefore proposes this area as critical habitat for the North Pacific right whale. Activities Which may be Affected by This Designation Section 4(b)(8) of the ESA requires that we evaluate briefly and describe, in any proposed or final regulation to designate critical habitat, those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect CH and, when carried out, funded, or authorized by a Federal agency, require that an ESA section 7 consultation be conducted. Such activities include, but are not limited to, oil and gas leasing and development on the Outer Continental Shelf (OCS), Federal management of high seas fisheries in territorial waters and the EEZ of the United States, dredge and fill, mining, pollutant discharges, other activities authorized or conducted by the Army Corps of Engineers and the Environmental Protection Agency (EPA), and military training exercises and other functions of the U.S. armed forces. This proposed designation of CH will provide these agencies, private entities, and the public with clear notification of proposed CH for North Pacific right whales and the boundaries of the habitat. This proposed designation will also assist these agencies and others in evaluating the potential effects of their activities on CH and in determining if section 7 consultation with NMFS is needed. Exclusion Process Section 4 (b)(2) of the ESA states that CH shall be designated on the basis of the best scientific data available and after taking into consideration its economic impact, the impact on national security, and any other relevant impact. Any area may be excluded from CH if the benefits of exclusion are found to outweigh those of inclusion, unless such exclusion would result in the extinction of the species. We will apply the statutory provisions of the ESA, including those in section 3 that define “critical habitat” and “conservation” to determine whether a proposed action might result in the destruction or adverse modification of CH. Based upon the best available information, it appears that the probability of oil or gas exploration activities within (or immediately adjacent to) proposed right whale critical habitat is very low, certainly within the 10-year time frame of our assessment. Likewise, there are no commercial production facilities in operation, currently under development, nor 'permitted' for future development, within these critical habitat areas. Unless contrary information emerges suggesting exploration and development are imminent, there is little expectation that Federal actions in the oil and gas sector will have the potential to “destroy or adversely modify” critical habitat as proposed under this action, within the analytical time horizon. The oil and gas industry has expressed current interest in exploring and developing oil and gas resources in the North Aleutian Basin OCS Planning Area. We also understand that the State of Alaska has announced support for this activity. However, we lack specific information regarding this potential exploration and development activity and have been unable to gather information on these activities. Therefore, we specifically request comment on the type of exploration and development activities under consideration and the likelihood for such activities to occur, a description of the areas in the North Aleutian Basin that may be affected by any such activities, the extent to which the activities may affect the proposed critical habitat, and any other issues that may be relevant to the analysis of impacts and the exclusion process under section 4(b)(2) of the ESA. Any information we acquire and public comments received on these issues will be considered in analyzing the impacts of the designation of critical habitat and in the section 4(b)(2) exclusion process. While we expect to consult annually on fishery related proposed actions that “may affect” the proposed CH, none of these consultations would be expected to result in a finding of “adverse modification,” and thus none would be expected to result in imposition of costs on commercial fishery participants. Because fisheries do not target or affect the PCEs for the North Pacific right whale, it then follows that no fishing or related activity (e.g., at-sea processing, transiting) would be expected to be restricted or otherwise altered as a result of critical habitat designation in the two areas being proposed. We did not find any specific areas in which the costs exceed benefits for activities that may affect CH, and we have therefore not proposed the exclusion of any areas from designation. This action is anticipated to result in consultations with EPA on seafood processing waste discharges; with the Department of Defense
(DoD)on military “underway training” activities it authorizes; and with the U.S. Coast Guard
(USCG)and Minerals Management Service
(MMS)on approvals of oil spill response plans, among others. It is unlikely that these activities will result in an “adverse modification” finding, and, thus, no mandatory modifications would be imposed. It must follow then that no “costs” are imposed as a result of designation beyond the small costs attributable to inter-agency (occasionally intra-agency) consultation. As explained in the impacts analysis prepared for this action, some larger benefit accrues to society as a result of designation, including the educational value derived from identification and designation of the critical habitat areas within which the PCEs are found. Thus we believe that the benefits of exclusion are outweighed by the benefits of inclusion. Our analysis (available on the NMFS Alaska Region website *http://www.fakr.noaa.gov/* ) did not find any specific areas which merit such exclusion in consideration of economics, nor have we determined that national security interests or other relevant impact warrant the exclusion of any specific areas from this proposed designation. We solicit comments on these benefits and costs as well as our determinations. Public Comments Solicited We request interested persons to submit comments, information, and suggestions concerning this proposed rule to designate CH for the North Pacific right whale. Comments or suggestions from the public, other concerned governments and agencies, the scientific community, industry, or any other interested party concerning this proposed rule are solicited. Comments particularly are sought concerning:
(1)Maps and specific information describing the amount, distribution, and use type (e.g., feeding, calving, migration) of the North Pacific right whale;
(2)Information as to the identification of physical or biological features which may be essential to the conservation of the North Pacific right whale;
(3)Information on whether the copepods and euphausiids in feeding areas identified by NMFS as PCEs, or any other physical or biological features that may be essential to the conservation of the North Pacific right whale, may require special management considerations or protection;
(4)Information regarding the benefits of excluding any portions of the proposed CH, including the regulatory burden that designation may impose;
(5)Information regarding the benefits of designating particular areas as CH;
(6)Current or planned activities in the areas proposed for designation, and their possible impacts on proposed CH;
(7)Any information regarding potential oil and gas exploration and development activities in the North Aleutian Basin OCS Planning Area, including information on the type of exploration and development activities under consideration and the likelihood for such activities to occur, a description of the areas in the North Aleutian Basin that may be affected by any such activities, the extent to which the activities may affect the proposed critical habitat, and any other issues that may be relevant to the analysis of impacts and the exclusion process under section 4(b)(2) of the ESA;
(8)Any foreseeable economic or other potential impacts resulting from the proposed designation; and
(9)Whether specific unoccupied areas not presently proposed for designation may be essential to the conservation of the North Pacific right whale. You may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES ). The proposed rule, maps, fact sheets, and other materials relating to this proposal can be found on the NMFS Alaska Region website at http://www.fakr.noaa.gov/. We will consider all comments and information received during the comment period on this proposed rule in preparing the final rule. Accordingly, the final decision may differ from this proposal. Public Hearings 50 CFR 424.16(c)(3) requires the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed regulation to designate CH. Requests for public hearing must be made in writing (see ADDRESSES ) by December 13, 2007. Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's involvement in such ESA matters. Classification Regulatory Planning and Review This proposed rule has been determined to be significant for purposes of Executive Order (E.O.) 12866. As part of our exclusion process under section 4(b)(2) of the ESA, the economic benefits and costs of the proposed critical habitat designations are described in our draft economic report. Data are not available to express all costs and benefits of CH designation in monetary terms. Indeed, many costs and benefits accrue outside of traditional markets and, therefore, are not typically associated with a “monetary” measure (e.g., subsistence activities). In such cases, an effort has been made to “quantify” benefits and costs in measurable units. Finally, some benefits and costs cannot be either monetized, nor quantified, yet are important to a full evaluation and understanding of a proposed action. In these instances, benefits and costs have been fully characterized in “qualitative” terms. Application of a benefit/cost framework is fully consistent with E.O. 12866. In July 2006, NMFS revised the existing critical habitat for northern right whales to include critical habitat in the eastern North Pacific (71 FR 38227, July 6, 2006). Subsequently, it was determined that the North Atlantic and North Pacific populations of northern right whale are, in fact, distinct species. This rule, therefore, proposes as critical habitat for the North Pacific right whale (currently proposed for listing 71 FR 77694, December 27, 2006) the same critical habitat that was finalized in 2006. The proposal would not have any additional effect because the habitat proposed for designation is the same that was designated in the previous rule. The analysis provided largely mirrors the analysis provided in the previous rulemaking, updated as necessary to account for new information, and does not result in any substantive changes to the analytical conclusions. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). We have prepared an initial regulatory flexibility analysis (IRFA), and this document is available upon request (see ADDRESSES ). This IRFA evaluates the potential effects of the proposed CH designation on federally regulated small entities. The reasons for the action, a statement of the objectives of the action, and the legal basis for the proposed rule, are discussed earlier in the preamble. A summary of the analysis follows. The small entities that may be directly regulated by this action are those that seek formal approval (e.g., a permit) from, or are otherwise authorized by, a Federal agency to undertake an action or activity that “may affect” CH for the North Pacific right whale. Submission of such a request for a Federal agency's approval, from a small entity, would require that agency (i.e., the 'action agency') to consult with NMFS (i.e., the 'consulting agency'). Consultations vary, from simple to complex, depending on the specific facts of each action or activity for which application is made. Attributable costs are directly proportionate to complexity. In the majority of instances projected to take place under the proposed CH designation, these costs are expected to accrue solely to the Federal agencies that are party to the consultation. In only the most complex of “formal consultations” might it be expected that a private sector applicant could potentially incur costs directly attributable to the consultation process itself. Furthermore, if destruction or adverse modification of CH is found at the conclusion of formal consultation, the applicant must implement modifications to avoid such effects. These modifications could result in adverse economic impacts. An examination of the Federal agencies with management, enforcement, or other regulatory authority over activities or actions within, or immediately adjacent to, the proposed CH area, resulted in the following list. Potential action agencies may include: the EPA, USCG, DoD, MMS, and NMFS. Activities or actions with a nexus to these Federal agencies which are expected to require consultation include: EPA permitting of seafood processing waste discharges at-sea; USCG and MMS oil spill response plan approval, as well as emergency oil spill response; DoD authorization of military training activities in the Bering Sea and Aleutian Islands
(BSAI)and GOA; MMS leasing activity, oil and gas exploration and production permitting, and NMFS fishery management actions in the BSAI and GOA. A 10-year “post-CH designation” analytical horizon was adopted, during which time we may reasonably expect to consult an estimated 27 times on CH-related actions with one or more of the action agencies identified above. The majority of the consultations are expected to be “informal,” projected to represent approximately 52 percent of the total. The more complex and costly “formal” consultations are projected to account for, perhaps, 37 percent; while the simplest and least costly “pre-consultations” are expected 11 percent of the time. These figures reflect the best estimates information and experience can presently provide. On the basis of the underlying biological, oceanographic, and ecological science used to identify the PCEs that define CH for the North Pacific right whale, as well as the foregoing assumptions, empirical data, historical information, and accumulated experience regarding human activity in the BSAI and GOA, it is believed that only one federally authorized activity (among all those identified in the analyses and referenced above) has the potential to “destroy or adversely modify” right whale CH, albeit believed to be a relatively small potential. This one class of activity is OCS oil and gas exploration and production. As previously indicated, MMS has authority over OCS oil and gas permitting. An examination of published information from the MMS Alaska Region reveals that three MMS OCS planning areas overlap some portion of the proposed right whale CH areas. Further, MMS sources indicate that in only one of these has there been any exploratory well drilling (i.e., St. George Basin). Ten exploratory wells were permitted, all of which were completed in 1984 and 1985 (with no subsequent associated exploration activity). It appears that there has been no recent OCS oil and gas activity in and adjacent to the areas being proposed for critical habitat designation. MMS reports no planned or scheduled OCS lease sales for these areas through 2007 (the end of the current 5-year Lease-Sale planning cycle). However, both seismic acquisition and leasing took place in the adjacent North Aleutian Basin Planning Area through Sale 92 held in 1988. Leases were held until 1995, when a “buy-back” settlement was reached between leaseholders and the Federal government. There are no current OCS lease holdings in the St. George Basin or North Aleutian Basin Planning Areas. In January 2007, the President modified the Presidential withdrawal for the North Aleutian Basin, allowing the Secretary of the Interior to offer this OCS planning area for leasing during the next 5-year OCS leasing program (2007-2012). The 2007-2012 program now includes a lease sale in the North Aleutian Basin to be held in 2011. MMS may also offer a sale in the North Aleutian Basin which would be confined to a small portion of the planning area previously offered during lease sale 92 in 1988. When MMS records were consulted as to the identity of the entities that previously held lease rights to the wells in the St. George Basin, six businesses were listed for the ten permitted exploratory wells. These include: SHELL Western E&P Inc. (2 wells); ARCO Alaska Inc. (3 wells); EXXON Corp. (2 wells); Mobile Oil Corp. (1 well) (now merged with EXXON); GULF Oil Corp. (1 well); and CHEVRON USA Inc. (1 well). MMS records also indicate that the following nine companies submitted bids, jointly or individually, on blocks in the North Aleutian Basin under lease sale 92 held in 1988: Chevron, Unocal, Conoco, Murphy, Odeco, Amoco, Shell, Mobil, and Pennzoil. These data were last updated, according to the MMS website, March 17, 2005. It would appear that none of these entities could reasonably be characterized as “small” for RFA purposes. All are widely recognized multi-national corporations and employ more than “500 full-time, part-time, temporary, or any other category of employees, in all of their affiliated operations worldwide” (the criterion specified by SBA for assessing entity size for this sector). The preferred alternative was compared to the mandatory 'No Action' (or status quo) alternative. In addition, a third alternative was analyzed and its expected benefits and costs contrasted with the status quo and preferred alternatives. That alternative was based upon the proposed areas of the Bering Sea identified in an October 2000 petition that requested critical habitat be designated for the northern right whale within the North Pacific Ocean. Because there appear to be no identifiable economic costs to any small entities attributable to the CH designation action, there cannot be an alternative to the proposed action that imposes lesser impacts, while achieving the purpose of the ESA and the objectives of this action, than are reflected in the preferred alternative. The action does not impose new recordkeeping or reporting requirements on small entities. The analysis did not reveal any Federal rules that duplicate, overlap or conflict with the proposed action. Military Lands The Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete, by November 17, 2001, an Integrated Natural Resource Management Plan. The National Defense Authorization Act for Fiscal Year 2004 (Public Law No. 108-136) amended the ESA to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” We have determined no military lands would be impacted by this proposed rule. Executive Order 13211 On May 18, 2001, the President issued an Executive Order (E.O.) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking any action that promulgates or is expected to lead to the promulgation of a final rule or regulation that
(1)is a significant regulatory action under E.O. 12866 and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy. We have considered the potential impacts of this action on the supply, distribution, or use of energy, and we find the designation of critical habitat will not have impacts that exceed the thresholds identified above. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act, we make the following findings:
(a)This proposed rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5) (7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance; or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of CH does not impose a legally binding duty on non-Federal government entities or private parties. Under the ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify CH under section 7. While non-Federal entities who receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of CH, the legally binding duty to avoid destruction or adverse modification of CH rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would CH shift the costs of the large entitlement programs listed above to State governments.
(b)Due to the prohibition against take of this species both within and outside of the designated areas, we do not anticipate that this proposed rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required. Takings In accordance with E.O. 12630, the proposed rule does not have significant takings implications. A takings implication assessment is not required. The designation of CH affects only Federal agency actions. Private lands do not exist within the proposed CH and therefore would not be affected by this action. Federalism In accordance with E.O. 13132, this proposed rule does not have significant federalism effects. A federalism assessment is not required. In keeping with Department of Commerce policies, we request information from, and will coordinate development of, this proposed CH designation with appropriate State resource agencies in Alaska. The proposed designation may have some benefit to State and local resource agencies in that the areas essential to the conservation of the species are more clearly defined, and the PCEs of the habitat necessary to the survival of the North Pacific right whale are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur). Civil Justice Reform In accordance with E.O. 12988, the Department of the Commerce has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the E.O. We are proposing to designate CH in accordance with the provisions of the ESA. This proposed rule uses standard property descriptions and identifies the PCEs within the designated areas to assist the public in understanding the habitat needs of the North Pacific right whale. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This proposed rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act We have determined that an environmental analysis as provided for under the National Environmental Policy Act of 1969 for CH designations made pursuant to the ESA is not required. See *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996). Government-to-Government Relationship With Tribes The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175 - Consultation and Coordination with Indian Tribal Governments- outlines the responsibilities of the Federal Government in matters affecting tribal interests. We have determined the proposed designation of CH for the North Pacific right whale in the North Pacific Ocean would not have tribal implications, nor affect any tribal governments or issues. None of the proposed CH occurs on tribal lands, affects tribal trust resources, or the exercise of tribal rights. The North Pacific right whale is not hunted by Alaskan Natives for traditional use or subsistence purposes. References Cited A complete list of all references cited in this rulemaking can be found on our website at *http://www.fakr.noaa.gov/* and is available upon request from the NMFS office in Juneau, Alaska (see ADDRESSES ) List of Subjects in 50 CFR Part 226 Endangered and threatened species. Dated: October 23, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, we propose to amend part 226, title 50 of the Code of Regulations as set forth below: PART 226—DESIGNATED CRITICAL HABITAT 1. The authority citation of part 226 continues to read as follows: Authority: 16 U.S.C. 1533 2. In § 226.203, the section heading and the introductory text are revised; and the headings for paragraphs
(a)and
(b)are revised to read as follows: § 226.203 Critical habitat for right whales. Critical habitat is designated for right whales in the North Atlantic and North Pacific Oceans as described in paragraphs
(a)and
(b)of this section. The textual descriptions of critical habitat are the definitive source for determining the critical habitat boundaries. General location maps are provided for critical habitat in the North Pacific Ocean for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.
(a)North Atlantic right whale ( *Eubalaena glacialis* )—* * *
(b)North Pacific right whale ( *Eubalaena japonica* )—* * * [FR Doc. 07-5367 Filed 10-26-07; 8:45 am]
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  • 40 CFR 271
  • 40 CFR 271.21
  • 40 CFR 266.100
  • 40 CFR 268.5
  • 40 CFR 270.79
  • 40 CFR 270.4
  • 40 CFR 272
  • EO 18266
  • Pub. L. 104-4
  • 50 CFR 679
  • 50 CFR 600
  • 118 Stat. 110
  • 14 CFR 25
  • 14 CFR 34
  • 14 CFR 36
  • 14 CFR 121
  • Pub. L. 92-574
  • 40 CFR 52
  • 50 CFR 226
  • 50 CFR 424.12(e)
  • 50 CFR 424.12(b)
  • 50 CFR 424.02(j)
  • 50 CFR 424.16(c)(3)
  • Pub. L. 108-136
  • 48 F.3d 1495
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U.S.C.§ 601
Fed. Reg.Proposed Rules
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F. App'x48 F.3d 1495
Cite40 CFR 271
Cite40 CFR 271.21
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